Recently in Personal Injury Category

May 8 - Georgia - A 21-year-old woman driving a Nissan Maxima turns left into an oncoming motorcycle police officer (with 14 years as a motorcycle officer), breaking both his ankles, breaking one leg and fracturing a hip.  The woman fled the scene but was later apprehended.

May 9 - Massachusetts - A 21-year-old man driving a Ford Explorer turns left in front of an oncoming motorcyclist, causing serious injuries to the 20-year-old rider on the Yamaha YZF-R6.  Police said speed and alcohol did not appear to be factors in the 9:08 p.m. collision.  The Ford Explorer driver was ticketed for failure to yield.

May 9 - Canada - A 21-year-old man driving a Mazda truck turns left in front of a 47-year-old man on a 2012 BMW motorcycle, killing the motorcyclist.

Last week I helped my law partner Bryan Slaughter try a case against a Virginia deputy who shot and killed a young man only 22 years old. Neal Seamster had a blunt cigar, filled with marijuana. When a plain clothes member of the local narcotics task force approached his car and said "Hey, we need to talk," Neal tried to drive away. As he backed up his car, the plain clothes officer ran to his SUV to give chase but another task force member ran out of the Sheetz. As the car started forward, the deputy ran into the path of the fleeing car and shot and killed the young driver. In the middle of this trial, I read a news story on the Trayvon Martin shooting and was saddened, but not surprised, to see that the police have taken no action against the shooter, just as the local authorities and Virginia State Police took no action against the shooter in our case. 

The Chrisian Science Monitor and the Miami Herald report that Sanford, Florida, Police Chief Lee says shooter George Zimmerman claims he acted in self-defense and "We just do not have the evidence to disprove what Mr. Zimmerman says." Really?

This shooting didn't happen in Zimmerman's living room after Martin broke into his house.

Zimmerman was out at night. In an SUV. With a 9mm semiautomatic handgun. According to The Monitor, Zimmerman's calls to 911 began with him reporting a "young black male" walking in the Retreat At Twin Lakes gated community. He reports "It's raining. He's just walking around, looking about. . . . Now he's just staring at me." He says (Martin) has his hand in his waistband and that "He's coming to check me out."

Dispatch asks "Are you following him?" "Yeah." Dispatch tells him "We don't need you to do that." Zimmerman does it anyway.

He has not reported any illegal activity to the dispatcher. No peeping into windows. No breaking into houses. No walking up to dark houses and checking doors or windows to see if they are unlocked. No attempts to break into any cars.

Missing from the numerous articles on this shooting are any statements that Zimmerman was driving an SUV that was clearly marked as a neighborhood watch vehicle or marked in any way that would suggest to an African-American teen or adult that he was being followed at night, in the rain, by someone with peaceful intentions.

A fight did occur, according to reports by multiple witnesses, but it did not occur because Martin attacked Zimmerman's SUV or dragged him out of his SUV.

Before he gets out of his SUV to pursue Martin on foot, Zimmerman told 911 "these a**holes always get away." Who is going after who?

Zimmerman then pursues Martin on foot. Zimmerman is not wearing a uniform or any insignia that would identify him as a security officer or neighborhood watch. He was not dressed in a way that would tell Trayvon Martin the person stalking him had a legitimate purpose or peaceful intent in doing so.

When Zimmerman goes after Martin on foot, how did Martin see that? Zimmerman's stalking behavior coupled with his getting out of his SUV to confront Martin face to face could reasonably be seen by Martin as an intentional threat of physical harm, also known as an assault. (Under Florida law, an assault is intentional threat by word or act that seeks to physically harm another, coupled with an apparent ability to do so, which creates a well-founded fear in such other person that such violence is imminent.) The only person here who should have felt legitimately threatened was Trayvon Martin.

Martin had the right to defend himself against a white or Hispanic man stalking him at night. He had the right to be in that neighborhood. He had no duty to retreat when he was approached by Zimmerman. On the other hand, it was Zimmerman who provoked this whole matter by stalking Martin, by following him in disregard of the dispatch officer's instructions, and by getting out of his SUV to confront Martin face to face. He felt that "these a**holes always get away" and he wasn't going to let that happen again. Zimmerman wasn't the victim here, he was the aggressor.

All these facts are available to Chief Lee to disprove what Zimmerman claims. Zimmerman has no right to create a situation like this and then plead self-defense. Otherwise, anyone in Florida could provoke a fight, wait for their opponent to fight back, shoot them, plead self-defense and walk away from the homicide as free as a bird.

It's been nearly 30 days since the February 26 shooting occurred. It took over three-and-a-half years for the family of our shooting victim to hear a jury find that the deputy was wrong in shooting their son. Let's pray that justice comes sooner for the family of Trayvon Martin.

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Off the coast of Italy on January 14, Captain Schettino runs his cruise ship aground, "trips" into a lifeboat and refuses to get back aboard his sinking ship to assist in the rescue despite the repeated commands of Chief De Falco of the Italian Coast Guard. That same day, The Tampa Bay Times reports that a man who pleaded guilty to DUI manslaughter for rear-ending a Chevy Tahoe at a traffic light has filed a lawsuit against the Tahoe driver. Like Captain Schettino, David Belniak has some explaining to do, and it better be good.

Winston Churchill once said, "I'm just preparing my impromptu remarks." A bit of planning can help make the most of opportunities.

Before going out to a holiday event or party where alcohol will be served, plan a safe way home before you take that first drink. Designate a sober driver. Add the telephone number for a taxi service to the contacts list in your cell phone. Arrange a ride home with a friend or family member who will be there and be sober.

Wear a red ribbon when you go out to remind others of the danger of drinking and driving.

If you plan on drinking, know that if you drink on an empty stomach the alcohol will enter your bloodstream faster and you may become impaired more quickly than you expected and get caught up in festivities and lose track of how much you have had to drink. While the best course of action is don't drink and drive, if you are planning to have some alcohol and drive yourself home, then limit yourself to a drink or two, switch to non-alcoholic beverages after that and don't drive for two or three hours after your second and last drink. It takes time for your body to process the alcohol out of your system. Drinking coffee or an energy drink like Red Bull or Rockstar will not shorten that time. Be sure to know not only what you are drinking but also how much alcohol is in your drink. An egg-nog or punch can have more alcohol than a beer, glass of wine or cocktail. If you still feel a buzz when you plan to leave, get someone to drive you home instead or call a taxi.

If you are hosting a party, offer to provide a ride home for guests who drink or offer them a place to sleep.

Be sure to offer your guests non-alcoholic drinks, both sweet and non-sweet. One option is cranberry and soda on ice. A low calorie option is sparkling water, either unflavored or flavored with lemon/lime, tangerine or strawberry. There are also sparkling fruit juices and berry juices, including apple, pear, grape, blueberry, cranberry and strawberry. In addition to regular sodas, there are GuS (Grown-up Sodas) sodas containing less sugar and in flavors including lemon, lime, ginger ale, black currant, orange, grapefruit, pomegranate and cola. Other options include a holiday iced tea with cloves and cinnamon, warm apple cider with cinnamon sticks, non-alcoholic egg nog, sparkling teas, and non-alcoholic beers like O'Doul's and Sharp's and some excellent imports including Beck's NA, St. Pauli Girl, Buckler and Kaliber.

Make it easy for your guests to choose a non-alcoholic beverage by having a variety of non-alcoholic drinks available and easily accessible. Let them know when they arrive that you have non-alcoholic drinks before you point them to the bar or put an alcoholic beverage in their hand.

Regardless of whether you have had any alcohol at all to drink, avoid driving late at night and in the hours after midnight when many drunk-driving crashes occur.

Wear your seat belt at all times, and have your passengers wear their seatbelts.

If you see a drunk driver on the road, don't hesitate to call local law enforcement. Don't think of it as turning in a driver who, but for the grace of God, could be you. Think of the child, the mother or father who might be killed down the road by a driver who should not be behind the wheel of that car. We all know we should not be driving when we've been drinking. Drunk or not, impaired driving is no way to celebrate the Holidays.

Let's help each other get home safely.

Last week, I was talking with Jane and Rick on WINA about motorcycle laws and Jane asked about Pocket Rockets. I thought she meant Crotch Rockets, the 600cc and 1000cc sport bikes you sometimes see cutting around cars and speeding off bearing riders in shorts and t-shirts flapping in the wind. She asked a second time and I remained clueless. Thirty minutes later, I had a moment of clarity, followed by memories of Homer Simpson yelling, "Doh! Doh! Doh!"

Pocket Rockets, also known as Pocket Bikes, are tiny, motorcycle replica mini-bikes with seats fewer than 24 inches high and engines often 50ccs or less. Some ads for certain brands suggest that these bikes are legal in all 50 states. Meeting EPA emission standards does not make a Pocket Bike street legal in Virginia. Pocket Bikes or Pocket Rocket motorcycles are not legal to ride on the public roads and highways in Virginia.

Under the Code of Virginia, if a "motor-driven cycle" has an engine smaller than 150cc, a seat height fewer than 24 inches and no manufacturer issued vehicle ID number, that cycle shall not be operated over any public highway in the Commonwealth. That includes streets, roads, and interstate highways. Section 46.2-100 and 46.2-911.1.

Jane asked if it was legal for kids to be riding Pocket Rockets up and down the streets in Belmont. Not in Virginia.

Even if the bikes meet EPA emission standards, riders need to take these motor-driven cycles to parking lots, private roads, driving ranges, tracks and similar places where they are allowed. On the public roads, the vehicle mix runs from scooters to SUVs and tractor-trailers. The small size, low height and speed of Pocket Bikes make them and their riders extremely vulnerable when mixed in with the larger vehicles on public roads and highways.

Injuries are part of the game in some sports. Football and hockey are like combat where the players fight over a single ball or puck. In spite of pads, helmets, and rules, we expect players in these sports will get injured. Golf is different. The players don't wear pads or helmets but sport comfortable pants and shirts, and maybe a cap. There's no fighting over the same ball or passing it around to keep it away from other players. Each player has his own ball. There's no pushing in golf. No tackling. No throwing elbows or slamming into another player. Not even any chatter to distract an opponent during his swing.

In golf, each player takes his turn while the others stand at a safe distance. It's a gentleman's game. Polite, courteous. How many sports have their own etiquette? For many, it's about making and maintaining social contacts in a non-contact sport. But every once in a while, in the course of events, there is a breach of order and/or etiquette that results in a serious injury.

Take the case of the Long Island golfer who hit his third fairway shot and failed to call "Fore!" (According to Wikipedia, "'Fore!' is shouted as a warning during a golf game when it appears possible that a golf ball may hit other players or spectators.") The shot did not go well. The doctor who hit the ball badly struck one of his golf partners, another doctor, in the head. The testimony by the first doctor and his two golf partners differed as to whether the ball traveled 15 - 20 feet or farther before striking the second doctor. The testimony also differed as to whether the injured doctor was standing at an angle of 50 degrees away from the intended line of flight or whether the angle was in the 60 - 80 degree range. The second doctor was looking for his ball on the fairway when he was struck. He suffered a detached retina which left him blinded in his left eye.

The injured doctor filed a personal injury suit, claiming that his golf partner should have called "Fore!" The trial court dismissed the suit, stating that the injured golfer was not in the foreseeable zone of danger and that the injured doctor, as a golfer, had consented to the inherent risks of the sport. The lawyer for the plaintiff argued that the foreseeable zone of danger varies according to the skill of the golfer and that the first doctor should not have hit the ball without giving warning to his golf partners.

On December 21, 2010, the New York Court of Appeals issued its decision in the case. For now, at least in New York, it appears that no matter how badly the slice, hook, or errant shot may fly, the rule is golfer beware. The court ruled that bad shots are a common hazard and a golfer can't expect to get a warning shout of "Fore!" every time a ball comes his way. "A person who chooses to participate in a sport or recreational activity consents to certain risks" inherent to that activity. Getting hit without warning by a shanked shot was a commonly appreciated risk. Based on this decision, although golf etiquette may require such a warning, the law in New York does not.

Lest golfers believe they are free game, utterly unprotected by the law, the judges stated that "a plaintiff will not be deemed to have assumed the risks of reckless or intentional conduct or concealed or unreasonably increased risks." This begs the question, how bad must a golfer be before the law requires that he give a warning shout. While intentionally driving a shot into a fellow golfer in your line of fire is prohibited, what if your swing frequently produces errant shots veering 50 to 80 degrees off course? Is it reckless, when someone is within such a sweep to your right or left, to take a shot without calling "Fore!"? Golf etiquette would seem to demand it, but the court's decision suggests that such conduct would not be reckless, regardless of the golfers skill, or lack thereof. Is it reckless if the golfer hitting the shot is also Driving While Intoxicated? Some might consider intoxicated golfers a commonly appreciated risk of the sport.

In Virginia, a different type of accident occurred when a golfer made a practice swing after hitting two balls into the woods. The club came out of his hands and struck one of his golf partners 20 feet to his rear. The injured golfer lost his right eye as a result of being hit by the 2-iron. The Virginia Supreme Court stated that "The basic rule of law applicable to golfers is that a player upon a golf course must exercise reasonable care in playing the game to prevent injury to others." Thurston Metals & Supply v. Taylor, 230 Va. 475, 339 S.E.2d 538 (1986). Whether he has done so is "measured by the surrounding facts and circumstances of each case." In the Virginia mishap, the court stated that the swinging golfer "violated the customary requirement that a golfer maintain control of the club throughout the swing." The court added that the statement "Oops, it slipped," was not enough to keep the negligence claim from going to the jury. The Virginia Supreme Court also concluded that the injured golfer was "at an appropriate and apparently safe distance to the rear" and there was no evidence he had negligently caused his injury or assumed a risk of injury. The $200,000.00 jury verdict was upheld.

While it is not clear whether the law in Virginia would have afforded relief to the injured doctor in New York, it is hoped that golfers in New York would be protected from rearward-flying clubs, regardless of whether they were let loose due to recklessness or negligence. In either state, however, it appears that golf etiquette is superior to the law in providing greater safety and protection against unwanted contact with errant balls, loosed clubs, or lawyers.

Green Bay is off to the Super Bowl after Sunday's playoff win over the Bears at Soldier Field in Chicago, but come Monday it was a Green Bay Packers tie that led to defeat for Chicago car salesman John Stone. Monday's contest was at Webb Chevrolet in Oak Lawn, Illinois, less than 16 miles from Soldier Field. Stone wore a Green Bay Packers tie to work. The day after the Packers deprived Chicago of a trip to the Super Bowl. What was he thinking? His late grandmother was a Packers fan.

According to Stone's boss, Webb Chevrolet spends $20,000 a month on advertising with the Bears during the season and provides loaner vehicles to some Bears players. Stone had worked at the dealership a month and a half. Maybe he didn't get the memo.

The first request to take the tie off was joking, according to Stone. More requests followed. Stone's boss Jerry Roberts said he gave Stone five chances to take the tie off but he refused. Stone said he was only asked three times. ESPN reported Stone saying that Roberts finally came out of a meeting and confronted him. "Take your tie off or you're f#@!ing fired."

This is how traffic accidents often happen. It's not just one bad decision. It's one after another. Like driving on wet or icy roads. Then deciding to go a bit too fast for the conditions. Then getting too close to the car in front of you. Then getting angry because the car in front is going too slowly. You get closer to his bumper, thinking that will make him go faster. Next thing you know, you get to exchange insurance information and tell a police officer your version of the crash.

A frequent type of crash is one driver rear-ending another who is stopped at a traffic light. Again, it is often a series of bad decisions that causes the crash. The drivers at fault are not blind. Rarely are they distracted by an emergency. Multi-tasking while driving is a way of life. We drive. We listen to the radio. We eat. We drink coffee. Our front passenger seats are covered with things we may need while driving. Gloves, cell phone, CDs, make up, tissue paper, a shopping list.

We know we are driving with a traffic light ahead but we look at the buttons on our car radio anyway. This will only take a second, we decide. We pick up our cell phone to make a call or maybe read an email or text. (No sending texts while driving in Virginia anymore.) We think we have enough time before the light up ahead changes. At 45 mph, we are traveling about 65 feet a second. Five seconds reading that email or text message and you've gone more than the length of a football field. That traffic light has come up faster than you think. And it's red.

John Stone's collision with Jerry Roberts on Monday involved a number of decision points. First, there was choosing to wear the Green Bay Packers neck tie the Monday after the Bears' play-off loss. Maybe he thought the tie would be a conversation piece and give him the chance to talk to customers about his late grandmother who was a big Packers fan. On the other hand, Monday morning might find Bears fans still feeling raw over that loss, and that tie is like salt in a wound. Road and weather conditions were probably not good for taking that tie out for a spin that day.

Then there was his boss's joking request to take off the tie. Stone drove right through that yellow light. And the second request, made while Stone was with a customer. He drove through that yellow light too. Whether there was only one more request or three, Roberts' last warning was like a traffic barrier with black and white diagonal stripes, flashing lights and a sign "Bridge Washed Out Ahead." We may never know what made Stone proceed, undeterred by that ultimatum. However, if our cars uttered Roberts-esque driving tips, there would probably be far fewer accidents.

Tractor-trailers may be big and their drivers may sit up high where you would think they can see everything but they have blind spots big enough for your car, SUV or minivan to get lost in.

You may have read the notice on the back of some trailers that says, "If you can't see my mirrors, I can't see you." What it should say is "If you can't see my face in my mirrors, I don't see you."

Truck drivers are required to have a commercial drivers license. They have specialized training in the operation of large commercial vehicles. They know where their blind spots are. In an ideal world they would use their mirrors often enough to know when your vehicle is in one of their blind spots. The Virginia Driver's Manual, available online at the DMV website, calls these blind spots "No-Zones."

REAR BLIND SPOT

The obvious blind spot no-zone is immediately behind the truck. The driver can't see you and if or she brakes suddenly, you may not have time to avoid rear-ending the truck.

SIDE BLIND SPOTS

Two not so obvious blind spot no-zones are on each side of the truck, near the front half of the trailer, where you can clearly see the driver's side-mounted rear-view mirrors. You may think you're in a safe spot because you can see the mirrors, but don't be fooled. If the driver's abilities and alertness are impaired by fatigue, he may not have been checking his rear-view mirrors frequently enough to know that your car has moved into one of his blind spots. Rain, snow, ice, heavy traffic or other driving conditions may have drawn his attention elsewhere. In these situations, if the truck driver makes a move to his left or right, you could be hit, forced off the road or forced into another vehicle.

When you pass a truck on the interstate, don't linger in his blind spots. Move through them as quickly as you can, given the traffic and speed limits. You may want to hold back and allow a car ahead of you to get on down the road so that when you pass the truck, you can do so without sitting in the blind spot for several seconds or longer.

FRONT BLIND SPOT

The final no-zone is immediately in front of the tractor-trailer. With a moving tractor-trailer, you don't want to be here because if you have to stop suddenly, you don't want the tractor-trailer crashing into your car and crushing your passenger area. In slow moving or stop-and-go traffic, some trucks have a small blind spot immediately in front of the truck that may prevent the driver from seeing your brake lights come on. If a truck rear-ends you in stop and go traffic like this, do not go around to the back of your car to check the damage unless you have made eye contact with the truck driver and you know he or she sees what you are doing. The truck driver may not have felt the impact with your car. If traffic stops after such an impact and you get out to look at your rear bumper and you are standing in the truck's front blind spot, when traffic begins moving the truck may do the same. You would not be the first person in Virginia to be seriously or fatally injured in a situation like this.

Truck drivers are professional drivers but professionals of all kinds make mistakes. It only takes a moment of distraction or inattention. When you are driving around trucks, make sure you are in a position where the truck driver can see you. And remember, just because you can see his mirrors doesn't mean he sees you.

Click on this link to see a visual depiction of a truck's blind spots.  It is part of the Virginia Driver's Manual, View image

It is often said - "A picture is worth a thousand words." The saying may be true but pictures, like words, do not always tell the truth. When it comes to photos of yourself posted on Facebook after you have been injured in an accident, those photos may be lying about your medical condition.

If you are rear-ended at a traffic light or hit broadside by someone running a stop sign or a red light, you can have painful injuries that last for months, if not years. During that time, life goes on.

There are still chores to do, leaves to rake, grass to cut, kids to chauffeur around town, family picnics and get togethers to attend, and visits with friends. While still in pain, you do chores and activities you did before you were hurt. If you don't do them, who will? The insurance company for the person who hit you won't be knocking on your door to find out what kind of help they can offer. Those "good hands" are more likely balled up into tight fists.

You may go to the beach or a football game. You may go to a wedding, go out to dinner with friends, or go on vacation. Put pictures of any of these things on Facebook and the insurance company loves it. Those pictures probably make it look like you are having a good time and feeling fine. What they rarely if ever show is the pain you were in at the time, or the pain you were in afterwards for having gone out.

That is what insurance companies are counting on.

Whether you are trying to settle your own personal injury claim or a lawyer is handling your case, insurance companies are looking at your Facebook page and other social media websites where your pictures are posted. Don't think that your pages are private and that the insurance companies won't find your photographs. They will.

Once they find pictures of you doing anything you said you have trouble doing, or anything you couldn't do any more or that you tried and gave up because of your injuries, they lower the value of your claim. You may have told the whole truth and nothing but the truth, but now they have "proof" you are doing better than you say. Their lawyers tsk-tsk and say shame on you. Now they have something to show a jury and say - See this! She said she couldn't do this, and here she is doing it! They may even say that if you lied about your injuries, you can't be trusted on anything, including your story about how your accident happened or whether you had your aches and pains before the accident.

On the other hand, if you avoid doing everything your injuries interfere with, that same insurance company will accuse you of malingering and exaggerating your injuries.

If you have a Facebook page and are injured in an accident, think more than twice about putting pictures of yourself on the Internet. The value of your case may drop by a few thousand dollars, tens of thousands, or even hundreds of thousands of dollars, simply because you put photos of yourself on Facebook.

It used to be that insurance companies had to hire investigators to go out and take photographs and video of injured people, hoping to catch them in the act of doing something the company could use to challenge and undermine the injured person's claims. Now with Facebook, many injured people are doing the insurance investigators' work for free.

If you are injured in an accident, don't put any pictures of yourself on Facebook until your claim is settled or the trial is over.

In 2002, a former manager of a McDonald's in Brazil complained about gaining 65 pounds over 12 years. He said "mystery clients" visited McDonald's restaurants and reported back to McDonald's on the food quality, service and cleanliness at the restaurants. Because of this he felt pressured to sample the food daily for quality control purposes. He also apparently ate the free lunches his McDonald's offered. Last week a judge awarded him $17,500.

I read 15 or 20 reports on this decision online, looking for one that gave Judge Joao Ghisleni Filho's reasoning. Did McDonald's impose on its managers a particular level of actual consumption or ingestion? How does McDonald's train its managers to test for consistency in their food? Was the manager free to chew a couple mouthfuls and spit the food out when he sampled it for quality control? Was he obligated to eat McDonald's food for lunch? If so, how much? At what point did this manager make the connection between the fries and quarter-pounders going in and the pounds going on? Was there any mention of what he was eating outside of work during those 12 years? Did he stick to a low calorie diet at home and only open the calorie intake valves when he reported for duty?

Was the award only for the weight gain? $17,500 comes out to about $67.30 a quarter pound. Not much of an award. And what did the judge think of this former manager filing a complaint about having to eat the same food he sold to customers for 12 years?

With a story this strange, I long for Paul Harvey to be here to report "The Rest of the Story." Did the judge determine that McDonald's created a hostile work environment with McNazis posing as "mystery clients"? How far did McDonald's go in testing the franchise where this manager worked? Was this franchise singled out for special attention? Was McDonald's looking for an excuse to terminate this franchise? Did Judge Joao Ghisleni Filho find that McDonald's business practices in regard to this franchise in Porto Alegre crossed a line that required compensating this former manager? Perhaps we will never know. The story, as reported by Associated Press, was carried almost "as is" by nearly every site I looked at. Dollars to donuts, there's more to this story than what has been reported.

When you like riding motorcycles and like having a tall, cold beer on a hot day, it is tempting to mix the two - even though we know better. In the United States, temptation is in our DNA. We live in the land of more. Advertising has been pushing "more is better" into us since we were old enough to talk. We've seen so many images of cold beer, hot women, and good times we are primed to order that beer when we are in situations like we see in the ads.

After a good ride on a hot day with miles to go before days end, it is tempting to have something more, something good, something more than ice tea or a Coke. "It's Miller time!" urges us, along with "go for the gusto!" (if you remember that advertising slogan) or "just one won't hurt," to go ahead and order that beer. We know better. We've heard it in motorcycle safety classes. We've read it in motorcycle magazines. But instead of listening to Jiminy Cricket on our shoulder telling us "don't be a fool, stick with the ice tea," we're thinking - "It'll relax me for the ride home. I've only got a few more miles to ride. One beer won't make a difference. Everybody else is having one. That is going to taste great! I know my limits, I'll adjust my riding accordingly."

In addition to those rationalizations, there's also -- "I'll have an energy drink!! That'll get me home safe!!" We see their advertisements at motorcycle races. Monster Energy Drinks like M-80 and Heavy Metal. Red Bull. Rockstar. Full Throttle. The mental association they are pushing is that motorcycling and energy drinks go together. "So motorcycling plus an energy drink plus a beer (or maybe two or three thanks to the energy drink) and I'll be good to go!" Not so fast, cowboy.

Those energy drinks don't offset the effects of alcohol on perception time, reaction time, and judgment. They may have anywhere from 80 to 160 mg of caffeine or more, as much as 240 mg in some cases. A 12 oz. Coke has 35 mg of caffeine. All that caffeine can offset the drowsiness caused by alcohol but drowsiness is not the only effect on the brain and its ability to get you and your motorcycle home safely. We use the sense of drowsiness caused by alcohol to assess our level of impairment. When massive doses of caffeine take that drowsiness away, our ability to assess our level of impairment is reduced and we are likely to underestimate the extent to which one or more drinks have affected our ability to ride safely.

When we mix energy drinks and alcohol, we tend to drink more. When you take decreased perception and reaction time, and mix that with impaired judgment and the likely effect of massive caffeine on what the right wrist wants to do with the throttle, that ride home could go bad in ways our mothers, fathers, and loved ones don't want to know.

People who mix energy drinks are more likely to drive after drinking. They are more likely to underestimate their level of intoxication and mental impairment. And they are more likely to overestimate their ability to drive home safely.

When the day's ride is not yet over, you're sitting at a table, relaxed, and are tempted by a tall cold one, take a pass. Hold off on the beer until you're home safe, wherever "home" happens to be that night. Live to ride another day.

Tort Reforms That Undermine Right to Trial by Jury

Ask Legislators to Violate Their Oath of Office

TRIAL BY JURY in suits at common law is a right that "shall be preserved" according to Article VII of the Constitution of the United States. The Constitution of the Commonwealth of Virginia states that "in suits between man and man, trial by jury is preferable to any other, and ought to be held sacred." Article VIII, Section 11.

In taking their oath of office, the President of the United States, U.S. Senators and Congressman, and the Governor, officers and legislators in the Commonwealth of Virginia swear or affirm to defend the Constitution of the United States.

Men should be good neighbors to each other but the Constitution recognizes that when they are not, the right to trial by jury shall be preserved as the way to achieve a just resolution of their disputes. The oaths taken by our leaders as a prerequisite to holding office are oaths to uphold the Constitution and, thereby, uphold the right to trial by jury. This recognizes that the touchstone of law and power in the United States is the Constitution. Not the flag. Not the Oval Office. Not the Capitol. Not Wall Street.

Businesses should be good neighbors too, but while the rule "do unto others" may guide the conduct of individuals, the rule "maximize the bottom line" more often guides the conduct of businesses. Financial fraud, price fixing, price gouging, cutting corners, dumping toxic waste, making motor vehicles that attract buyers but catch fire on their own or easily roll over, and selling drugs, toys and other products that poison, maim and kill - all these add to the bottom line - as long as lawsuits don't get in the way. "Tort reform" is all about protecting that bottom line and doing away with lawsuits. It has nothing to do with making motor vehicles and other products safer, drugs safer, patients safer. Trial by jury is the remedy under the Constitution for holding wrongdoers accountable for not being good neighbors.

When the U. S. Chamber of Commerce, its Institute for Legal Reform, and corporations, interest groups, lobbyists and politicians talk about the need for "tort reform," they are asking legislators to chip away at our Constitutional right to trial by jury to hold corporations accountable.

If we saw these companies and industries on the playground when we were kids, we'd say they were bullies, wanting to push people around without having to answer to anyone.

Tort Reform is a one way street. Its goal is the elimination of the checks and balances on corporate power that trial by jury preserves by putting power into the hands of the people of the United States.

Legislators putting caps on the amount of damages that juries can award for medical malpractice claims, punitive damages, pain and suffering; creating rules that make it harder for people to prove their cases and get their cases before a jury; legislatures granting privileges and immunities from liability of one kind and another; allowing defendants to force plaintiffs to arbitrate a claim instead of going before a jury - the tools for taking away the right to trial by jury are many and devious. At times you need a Sherlock Holmes to sift through all the cries of alarm, the justifications and the deceptions to see that what they are really doing is taking a bit here, a bit there, until they have stolen from us this golden tool entrusted to us by our Founding Fathers for preserving a just society for generations of Americans yet to come. Our elected representatives have taken an oath to defend the Constitution. When it comes to tort reforms that undermine trial by jury, they should just say no.

___________________________

Presidential Oath - "I do solemnly swear (or affirm) that I will faithfully execute the Office of the President of the Unites States, and will, to the best of my ability, preserve and defend the Constitution of the Unites States."

U. S. Senate and Congress - "I do solemnly swear (or affirm) that I will support and defend the Constitution of the Unites States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God."

Commonwealth of Virginia - "I do solemnly swear (or affirm) that I will support the Constitution of the Unites States, and the Constitution of the Commonwealth of Virginia, and that I will faithfully and impartially discharge all the duties incumbent upon me as _________ (office) according to the best of my ability (so help me God)." Virginia Constitution, Article II, Section 7.

Graco Children's Products is recalling its Harmony high chairs sold in the U.S. between November 2003 through December 2009. Loose screws and cracked brackets can cause these high chairs to tip over. Graco sold 1.2 million Harmony high chairs in the U.S. and another 35,000 in Canada.

For a free repair kit, contact Graco at 1-800-345-4109 or online at Graco.Baby.com.

Based in Atlanta, Graco has received 464 reports of screws loosening or falling out and brackets cracking, resulting in unexpected tip overs of the high chairs.

For additional information, go to http://www.cpsc.gov/cpscpub/prerel/prhtml10/10171.html.

How many headlines have we seen - Children's Jewelry Recalled Because of Lead - or words to that effect. The Consumer Product Safety Commission (CPSC) website offers the following:

* Wal-Mart Recalls Charm Key Chains Due to Risk of Lead Exposure. 4/18/08. 12,000 units involved in this recall.

* Wal-Mart Recalls Additional Charm Key Chains Due to Risk of Lead Exposure. 6/19/08. About 39,000 units involved in this recall, in addition to 12,000 previously recalled.

* Horse Toy Figures Recalled by Blip Toys Due to Violation of Lead Paint Standard. 1/26/10. About 15,000 units. Sold at Wal-Mart from 1/2009 through 7/09.

* Children's Toy Jewelry Sets Recalled by Playmates Toys; Charms Violate the Total Lead Standard. 2/2/10. About 252,000 Tiny Tink and Friends Children's Toy Jewelry Sets. Sold at various retailers 11/08 through 11/09.

* FAF Inc. Recalls Children's Necklaces Sold Exclusively at Walmart Stores Due to High Levels of Cadmium. 1/29/10. About 55,000 units involved in this recall.

* CPSC Issues Warning on Children's Winter and Holiday-Themed Charm Bracelets with High Levels of Cadmium. 3/11/10. Rudolph-the-Red-Nosed-Reindeer charm bracelets sold at discount and dollar-type stores 2006 to March 2009. Number of units involved unknown as importer of these goods from China has gone out of business.

Why does it take the CPSC and state attorneys general to discover that products being sold for children contain toxic materials at unsafe levels? When Wal-Mart and other chain stores consider selling a product for children, do they not test the product to see if it contains toxic chemicals or toxic materials at unsafe levels? Where is the headline about how these products got on the store shelves in the first place? Who looked at these products to see if they were safe or toxic? Or did the retailers who offered these items to us to buy for our children, did they just look the other way?

The effects of lead on children are well known. It causes anemia, muscle weakness, brain damage and learning difficulties; it can also affect mental and physical growth. www.atsdr.cdc.gov./tfacts13.html

The effects of cadmium are lung damage, fragile bones, and possible kidney damage. Cadmium is a human carcinogen. It is used in batteries, pigments, metal coatings, and plastics. www.atsdr.cdc.gov./tfacts5.html

Mothers and fathers with young children don't have the time, energy, or resources to test every item they buy for their children. Anyone with young children knows there is not enough time in the day for everything, and sometimes it is hard to even read all the warnings on children's items. Large retailers know this. If a parent goes to a store and finds a toy on the shelf, she thinks it is safe if there is no warning on the packaging. When the warning comes months and months later in a headline or a CPSC recall announcement, it begs the question - who is minding the store?

Kevin Ryan wrote the following ode in response to a Dec. 30, 2009, story from the www.avvo.com, website: 

As the complexity and sophistication of robotic products increases, so too will increase the cost of proving liability. This cost will effectively close the courthouse doors to many who are injured. Manufacturers, through talking heads on TV, economic experts, pundits and so on are likely to lobby the public, the congress and state legislatures (a) on the need for immunities from suit to "protect jobs" (that probably have been exported to foreign countries) or to protect the "industry" so we don't fall behind other countries in robot production; or (b) they will seek the creation of additional procedural hurdles in the court systems and legal process to make it impossible for an injured person to hold a corporate manufacturer responsible before a jury.

New remedies or procedures will be needed to level the playing field so that economics alone do not dictate who can bring a lawsuit. The time may have come for the cost of proving liability to be included in the damages that are recoverable by an injured party who wins at trial after having made a settlement offer which was less than the jury verdict.

Without some mechanism to offset the cost barrier to holding such manufacturers responsible for the injuries they cause and to encourage them to have adequate levels of insurance coverage, their licenses to manufacture complex and sophisticated robotic devices will become, thanks to the high cost of litigation, licenses to maim and kill. That would be a world like the Empire Luke Skywalker fought against. It will be a world where the court system serves the powerful at the expense of the individual. In the rush to a future where R2Ds and C3POs move among us, let us not forget that it is the individual who is paramount, because when the individual is protected, each and every one of us is protected; but when it is the wealthy and powerful who are protected, then the rest of us live in danger.

In the movie Ghostbusters, the ghostbusters' advertising slogan asked - who you gonna call? As we move forward into a world with increasingly complex products, we need to remember this question and be sure that the justice system keeps the court house doors open to individuals injured by sophisticated and complex products of all kinds.

In Star Wars when R2D2 and C3PO are sold to Luke Skywalker's uncle, he was looking for droids (thinking robots) to operate his farm equipment. Nobody asked - who made these things and who is at fault if they malfunction and burn down my workshop, destroy my equipment or injure anybody? The Star Wars script did not call for product malfunction and mayhem to create a personal injury law saga. However, Murphy's law is written into the script of real life. If accidents can happen, they will.

We have cars that parallel park themselves. We have Roomba vacuum cleaners that roll around the house on their own, moving from room to room, avoiding stairs, even plugging themselves into their docking station when their battery gets low. We have industrial robots in factories and robots used by the military in Iraq to detect and inspect bombs. The day is coming when robots will be moving around among us, operating not by direct human control but on artificial intelligence and other programs. Like the various products that have come before them, these robot devices will malfunction and injure people. It may be a car that drives itself through a cross-walk filled with pedestrians, or a janitorial robot bumping someone and knocking her down a flight of stairs, or a robot child caretaker that restrains a child and breaks his arm. Product failures and malfunctions are a fact of life that is not going to change.

Today when a machine or appliance causes a fire that burns down a house or kills people sleeping in their home, traditional product liability law determines responsibility for the loss of property or life. In these lawsuits, lawyers hire engineers to identify the malfunction that caused the fire and to determine whether that malfunction was caused by negligent design or negligent manufacture, alteration of the product during repairs or maintenance, abuse of the product, or a failure to warn about the fire hazard and what to do to prevent fires. In a typical defective product case, the cost for experts ranges from $75,000 to several hundreds of thousands of dollars. This litigation price tag alone prevents many legitimate cases from being brought - a form of tort control in and of itself.

Now along comes R2D2, adding artificial intelligence to the list of potential causes of product malfunction. The cost of litigation will be even greater as an additional class of experts will be needed to determine what part the computer software played in the malfunction. They will have to determine if the defect was in the original programming, or was it due to hacking or radio/ELF/microwave or other electrical interference, or to downloading a defective software patch, or downloading an updated version of the original program, or did the addition of a new program cause a conflict with the software in the robot in which the interaction of two non-defective programs caused a glitch that resulted in the injury? Determining the guilt or innocence of these ghosts within the machine will be difficult and expensive.

General Motors, pursuant to its Chapter 11 reorganization, was allowed to sell most of its properties to the new GM, leaving behind unwanted properties that contain environmental liabilities estimated at $530 million. GM has a $1.2 billion bankruptcy wind down budget to cover the clean up of these sites, but many fear that this is not enough, as that money will also be used to pay administrative fees, other claims, liabilities and bankruptcy attorney fees. If there is not enough money left over, the clean up fees will likely fall upon taxpayers.

Chrysler Group LLC had a similar bankruptcy and left behind environmental problems, but these are said to be no where near the scale of GMs contaminated sites. As you may imagine, other manufacturers have gone bankrupt before and left behind contaminated sites, but nothing of this magnitude.

As seen from my earlier blog article, GM was also able to wipe out current and pending product liability claims, and Chrysler was able to wipe out current and pending product liability claims, and any future claims for products manufactured prior to June 10, 2009. Those poor victims will likely fall on government plans such as Medicaid and Medicare, again leaving the taxpayer to foot the bill.

Did you know that more Americans die each month from preventable medical deaths than were killed in the terrorist attacks of September 11th? Most people don't, and this fact has been known for over 10 years. Despite this knowledge, and the goal of the medical report that concluded this, evidence seems to indicate that preventable medical deaths are on the rise, not the decline.

That decade old report by the National Institute of Medicine indicated that over 98,000 people die each year from preventable medical mistakes. A federal Centers for Disease Control and Prevention study concluded that an additional 99,000 patients a year die from hospital-acquired infections. Experts conclude that nearly all of these deaths are preventable as well. Over ten years ago the Institute of Medicine report recommended a nationwide reporting system for medical errors. This was vigorously opposed by the American Medical Association and the American Hospital Association. To date, no national reporting system exists, and the Obama administration has not recommended one in its proposed healthcare reform project.

A recent news article I read indicated that from 1997 to 2007 physical education injuries were up 150%!! The study speculates that the increase may be due to a lack of supervision and fewer school nurses.

Six sports accounted for 70% of injuries: running, basketball, football, volleyball, soccer, and gymnastics. The researcher stated that instructors must get comprehensive training in injury prevention, and kids need to get safety education as well, McKenzie said. Schools must also insure that teachers and students use all appropriate safety equipment, she added, for example laying down mats for gymnastics.

A widely used and painful treatment for spinal fractures caused by osteoporosis has been found to be ineffective in a new study. The procedure called vertebroplasty, injects a cement into the vertebrae. The procedure can cause serious injury or death if the cement seeps into blood vessels. One of the physicians who helped develop the procedure said he was shocked with the results. The study found the procedure to be no better than a placebo.

The studies were begun several years ago in the United States, Britain and Australia. It is too soon to tell whether this study will be affecting coverage of the procedures by insurance companies or medicare. I am always of the opinion that one needs to wait for the medical literature and studies to develop before you jump on the band wagon for a new procedure. Obviously, for some people, the choice may be death or the procedure. However, when it is not, studies such as this offer a good reason to wait.

I recently read an article that confirmed what I already knew, many doctors are making tons of money off of self referred work. An evaluation of a Urological Group revealed that the medical group had increased the number of CT Scans by over 700% for it patients after it bought its own CT Scanner. The article said that there were numerous other studies that showed that physicians that own scanners order more tests for their patients than those who do not.

With the debate over healthcare reform, studies like these are surfacing to show the increasing healthcare costs of unnecessary tests and procedures. The funny thing is that all I seem to have heard over the news are medical self interest groups blaming the attorneys for these increased costs, tests they deem necessary to cover their backsides. Doctors are not allowed to write prescriptions and then sell medications. Many say that they should not profit from imaging. I am inclined to agree. While the physician that owns his own scanner may be able to get that study done faster for you than referring you to a private group or hospital, one has to question the motivation. After all, the physician or practice group has to pay for the device and pay the operator of the machine. No one is in business to break even, and as this article indicates, this aspect of a physicians practice alone can make up a significant part of his income.

Not a week goes by where I don't get at least one phone call from a caller asking if he or she can sue their employer for their workplace injury. In Virginia, the answer is still no. If you are hurt on the job, even if your employer failed to give you safe equipment or failed to provide a safe workplace, your exclusive remedy is filing for workers' compensation benefits, which from my experience, are woefully inadequate.

There are several scenarios that allow you to file a workers' compensation claim and maintain a separate lawsuit, but not against your employer. For instance, if you are on the job, and involved in an automobile crash that is not your fault, you can file a lawsuit or claim (also called a third party claim) against the at fault party and file a claim for workers' compensation benefits. The bad news is that your workers' compensation insurance carrier maintains a lien against any recovery you may get, and you have to get approval of any settlement of your third party claim from the workers' compensation carrier. The comp carrier is required to pay you for its pro rata share of your attorneys costs and expenses, effectively discounting or reducing its lien. Another example would be if doctors committed malpractice in treating you for your injuries. In that instance, you could file your workers' compensation claim and maintain a malpractice claim against those physicians and/or the hospital. Again comp still has a lien, and still must approve any settlement. Frequently, the injuries to the worker are caused by a defective or dangerous piece of equipment. In that scenario, the worker or his family can file for workers' compensation benefits and file a lawsuit against the product manufacturer and/or seller. Again, comp still has a lien, and still must approve the settlement.

Lastly, in some instances, the worker may have been injured by another worker on the job site, who was not working for the injured workers' employer. In my opinion, this is one of the most complicated and convoluted areas of Virginia law. If the negligent worker is deemed an "other party" then he can be sued by the plaintiff. However, there are several "tests" used by the Virginia Supreme Court to determine if an employee is an other party and/or to see if the negligent worker's conduct was not part of the trade, business or occupation of the injured worker. There are frequent battles over which test applies to the workplace scenario at hand. Many times it seems as if each side can find a prior legal case in support of their theory, leaving it as a coin toss for the judge to decide. It is very important to make sure that you have a lawyer experienced in this area of the law. All too often I have had a person call my office advising me that their attorney had told them to settle their workers' compensation claim, because they had a such a good third party claim, when the victim had only to learn later that their third party claim was not very good and was in fact dismissed by the trial Court as barred. The end result was that the worker settled his workers' compensation claim too cheaply, banking on a third party claim that was anything but a sure thing.

If you are contemplating buying a used Chrysler product you may want to look at other models, and if you currently own a Chrysler product, you may want to consider selling it. Pursuant to Chrysler's bankruptcy, the company will not be held accountable for defective products it manufactured prior to the bankruptcy. As can be seen from a random Google search, product defects can surface years after the vehicle is manufactured and can manifest in a crash ranging from severe burn injuries from a defective part to paralyzing or life ending spinal injuries resulting from a defectively designed roof. Courtesy of Chrysler's bankruptcy, victims will not be able to file suit against the manufacturer for products manufactured prior to the bankruptcy exit date of June 10, 2009.

General Motors sought the same protection in its bankruptcy but was essentially shamed into agreeing to accept liability for any future claims against vehicles built under its old ownership, as long as the incident occurred after July 10, 2009. However, current and pending product liability claims were wiped out by the bankruptcy.

Earlier this year I posted a blog concerning new federal legislation, the Virginia Graeme Baker Pool and Spa Safety Act 15 U.S.C. 8001 et seq. that required pools to have a new drain cover. I have been checking the indoor and outdoor pools that my daughter swims in and so far all pools have complied. However, here in Roanoke, that only consists of the indoor and outdoor pools at the Roanoke Athletic Club and my sister's kids' private outdoor swim club pool owned by our church.

Apparently, some pools across the country still have not gotten the message, even those in metropolitan areas. A recent news article from Arizona found that at least 12 municipal pools did not have the new pool drain covers.

If your child is swimming at a public or private pool, or you have a pool at your home, make sure that you have replaced your old flat pool drain cover to comply with the new federal legislation. This could prevent serious injury or death to your child or a friend's. Be sure to ask the facility or facility owner if the covers have been replaced, and if possible check it yourself!

On June 4, 2009, the Virginia Supreme Court issued a decision that is sure to have tremendous impact on injury victims and their insurers in the state of Virginia. The decision means that injured victims could potentially have a greater amount of uninsured motorist coverage available if the injured victim/insured owns more than one car on any auto policy that covers that victim/insured.

The case of Virginia Farm Bureau Mutual Insurance Company v. Williams, re-opens Virginia law to intra-policy stacking of uninsured motorist coverage. An example of intra policy stacking would be having 2 vehicles on one insurance policy, each with $100,000 in uninsured motorist coverage. Prior to this decision, you likely only had $100,000 in coverage. You now may have $200,000 in coverage, if your policy language meets the criteria in Williams. Virginia law has long allowed auto policy insurers to prohibit intra-policy stacking as long as their policies clearly and unambiguously stated that the stacking was not allowed. In Williams, the Court looked past the language stated in the policy itself and examined the language in the declarations page of the policy. That language differed from an earlier Virginia Supreme Court case. In short, the court found it to be ambiguous and allowed an additional $550,000 in coverage!!

If you have a kettle or canister style pool filter, it could be deadly. In California, a woman whose husband was killed by one of these units is leading a crusade to warn the public. You can visit her website to get more information on these units. Since 1982, there have been at least 22 other similar incidents reported to the CPSC. However, the CPSC does not know of every incident the reporting requirement are pretty lax, in my opinion.

Apparently these filters consist of a two piece design, held together by a fastener. At least four different manufacturers use this same design. Allegations are that the clamping system can become loose and not properly hold the two pieces together. Most of these filters have air relief valves that can fail to release all of the built up air. These two problems can add up to filter top turning into a missile and killing or seriously injuring the person who is inspecting or servicing the unit. A safer alternative involves a series of bolts that hold the two parts together. If you own a pool, I would recommend contracting the service and inspection of the pool out to a professional.

Ducati is recalling 732 of its 2009 1198 S, 1098 R and F1098 S Streetfighter models. The manufacturer announced that the right fork could develop a crack, which "may lead to a loss of steering control, possibly resulting in a crash." Obviously, this crash could result in the death or serious injury of the driver!

Harley-Davidson is recalling about 11,000 of its 2008 and 2009 FLSTSB, its 2008 FXSTSSE2 and 2009 FXSTSSE3 models because the acorn stud at the brake reaction link may fall out. "If this occurs the front brake and fender assembly would no longer be adequately retained. This condition could lead to a crash and potential injury or death to the rider," Harley said.

Recently I was attending a legal seminar , when another lawyer and I were discussing our current product liability cases. I was shocked to hear a defective product that many of you probably have in your home now, a gas can. It seems that most consumer gas cans, the ones you have around your garage that you use for your lawn mower or weed eater, do not contain a flame arrester. This flame arrester is a small piece of wire mesh that fits in the spout/tube of the gas can, that prevents flammable gas vapors from escaping. This device costs only pennies.

I was able to find a special piece done by Dan Rather, former CBS news anchor, now working for HDNET, about a victim of such a defective product. His story revolved around an 8 year old boy who knocked over a gas can in his basement. No gas leaked out of the container , however vapors did. The vapors were ignited by the pilot light of their gas water heater and an explosion occurred. The child was burned over 47% of his body. I have also heard of at least 5 injuries resulting from people pouring gasoline onto an open fire. The trash or leaves were being burned in a 55 gallon drum. All of these involved gas cans without the flame arrestor. I have also witnessed a video of two different cans, one with an arrester and one without. Gas was poured onto an open flame with the can that did not have an arrester and an explosion occurred. Gas was poured onto an open flame with a can that contained an arrester, and no explosion occurred---so they do work!!

According to the Dan Rather piece referenced above, this hazard has been known to the industry at least as early as 1973, when it was discussed in a Consumer reports magazine. The Consumer Product Safety Commission held a meeting  to discuss these in May of 2007. At least one major manufacturer, Blitz, held the position that these arresters were potentially dangerous. The document indicates another meeting was to take place but I cannot locate that the meeting ever took place. Blitz has been subjected to several lawsuits over their cans and they have not offered the arrester with their cans. One has to wonder how legitimate their objections to adding these arresters is. Blitz cans are sold at Wal-Marts across the country.

The Office of the Inspector General has released a report outlining the use and reprocessing endoscopes at VA medical centers. This report was released following the March 2009 discovery that VA medical centers in Tennessee, Georgia and Florida possibly exposed more than 10,000 people to Hepatitis B, Hepatitis C and/or HIV through the use of endoscopic equipment that was not properly sterilized. As of April 2009, less than a third of the patients possibly affected were notified. Recently the Washington Post reported that fewer than half of randomly selected VA medical centers had properly sterilized medical equipment, used to perform colonoscopies. Additionally, these facilities failed to obey ordered to comply with guidelines. However this is not a problem found only in VA medical centers. Private hospitals have also reportedly notified thousands of patients in recent years after similar concerns arose. So, how can you protect yourself from being a victim of poor infection control?

Medical professionals advise that you can take steps to protect yourself from medical negligence of this sort.  If you are going to undergo a surgical procedure or treatment of any kind, you have the right to:

1. Require that all health care providers wash their hands in front of you, before they render any physical care to you;
2. Require that any needles used are from new packages, opened in front of you;
3. If you are going to receive an injection, require that the medication administered come from a new container;
4. Require that all health care providers wear new gloves when administering care to your and/or drawing blood;and
5. If you are not comfortable with your treatment or the environment, ask to speak with the infection control personnel at your health care facility.

If you are the unfortunate recipient of poor health care and/or infection control, seek additional medical treatment immediately. You may also wish to speak to an attorney so you can be sure of your rights.

I was recently involved in a case involving a tractor trailer and an elderly driver. The elderly driver was rear ended by the tractor trailer and suffered injuries which left her unable to recall the facts of the crash. Interestingly, in an attempt to limit liability, the trucking company hired a lawyer to offer opinions regarding our client's speed at impact. This issue had never been raised prior to trial, so we had not had our client's vehicle's black box data downloaded. The case settled and we ended up not having to hire an expert to provide the information for us. Fortunately, we still had the vehicle, so this would not have been a problem.

Soccer is one of the biggest sports in the United States now. Most parents think of soccer as a safe alternative to football or lacrosse. Did you know that from 1979 to May 2009, there have been 35 deaths and 53 reported injuries from portable soccer goals? This number consists of known and reported incidents only! How many more are out there? I am currently handling a case involving the death of a child resulting from a portable soccer goal tip over, and I can tell you there is not a sadder case than a family that has lost a child from a preventable incident.

Many portable soccer goals can weigh hundreds of pounds and are poorly designed. The goals are not properly counter weighted or rely solely upon anchors, which can become lost or separated from the goals. The reported deaths involve goals that accidentally tipped over from the wind, from children playing or climbing on them, and from people moving the goals to another location or to put nets on them. The Consumer Product Safety Commission published a guide book in 1995 and the family of a child killed by a falling portable soccer goal has developed a website that lists the victims I mentioned above, along with ways to prevent goals from tipping over.

Each year over 10,000 people are killed from rollover crashes or accidents. Many of these deaths are attributable to the weak roof of the vehicle caving in and crushing the occupants. The current NHTSA roof crush standard requires that a vehicle withstand 1.5 times the weight of the vehicle, applied to one side of the roof, for "light vehicles" up to 6,000 pounds in weight. Anyone who has seen this test can tell you how useless it is. Literally, a large metal plate is placed against the roof and slowly pressed against the roof up to the required testing limit. This is what is called a static test. This test fails, in my opinion, and many others, to adequately duplicate a real world rollover event where a vehicle can be traveling at anywhere from 15 to 60+ miles per hour when it suddenly flips and lands on its roof--a dynamic event, requiring a dynamic test. This roof standard has been in force since 1971 and has been heavily criticized in recent years.

Earlier this week I wrote about insurance coverage and how important it is. I recently received an inquiry about umbrella policies. Umbrella policies are large liability policies ($1million dollars or more) written to cover individuals or businesses. In most cases, these policies are less expensive than a comparable liability limit on your automobile or homeowner policy. In most cases, the insurer will also require that you carry a certain amount of liability coverage on your automobile and homeowner or renter's policy.

Umbrella policies are a good thing and I highly recommend them. However, most umbrella policies DO NOT cover underinsured or uninsured motorist claims. Therefore, it is still necessary to carry a large underinsured or uninsured motorist coverage liability limit. Ask your agent if you existing umbrella policy or the one your are contemplating, covers uninsured motorist or underinsured motorist claims. If the agent says they are covered, make him/her show you the policy itself to back up their opinion.

From the title of this piece, you may have assumed it was an article or ad written by an insurance company. I assure you it is not. A client was in my office a couple of weeks ago, and was involved in a very serious automobile accident. He was shocked to find out that the person who was at fault only had insurance limits of $25,000. The client had over $25,000 in medical bills alone. I told him that all was not lost, we could make what is called an underinsured motorist's claim against his insurance company. He happily went home to get me his insurance information and eagerly awaited my review. Unfortunately for him, he too had $25,000 in liability and underinsured motorist coverage as well; meaning that his total recovery was limited to $25,000! He was in stunned disbelief as he had been assured that he was "fully insured". Technically speaking, he did have the full insurance requirements of Virginia, currently $25,000 per person bodily injury limits, with a maximum of $50,000 total; and $20,000 in property damage coverage. I quickly advised him that while he had full coverage, he was not adequately insured for his own good.

While this client was "fully insured" or had "full coverage" as I have heard insurance agents and adjusters say, to the extent that he caused an accident and bodily injury to a pedestrian or the other driver or his own passengers, his insurance would only pay up to $25,000 per person injured, with a limit of $50,000! Obviously, if he accidentally struck a pedestrian or fell asleep at the wheel and rolled his vehicle down an embankment, medical bills alone for the victims could surpass $25,000. Welcome to bankruptcy!

The bigger problem for him was the fact that his underinsured motorist coverage (limits of which cannot be written or obtained greater than your liability coverage limits in Virginia at least) were $25,0000/$50,000, so he had no available underinsured motorist coverage. Underinsured motorist coverage is a coverage that can cover you if you are involved in an accident with a person that does not have sufficient liability coverage to cover your injuries. In this case for example, if the client had $500,000/$1million underinsured motorist coverage, he would have had an additional $475,000 in coverage available to cover his own injuries, medical bills and pain and suffering. Worst of all, increasing your liability, uninsured and uninsured motorist coverages is not that expensive. In my opinion, I would not operate a car today without having at least $1million in liability, uninsured and underinsured motorist coverages. Given the price of today's automobiles, I would carry at least $100,000 in property damage coverage. If you were to cause an accident that totaled a tractor trailer, many tractors cost in excess of $100,000, this does not take into account the trailer or its cargo.

Do yourself a favor and call your insurance agent today!!!

It seems like each year car seats are recalled. Register your car seat here. The site also contains the ability for the owner to research if their car seat has been recalled for any reason from the manufacturer.

An international group of academic, industry and government scientists have called into question the reliability two studies relied upon by the FDA to support its announcement that BPA is safe. BPA is found in food containers, household products and baby bottles.

According to the scientists at that meeting, the author of the studies, Rochelle Tyl, has conceded that there were errors in the 2008 study, relied upon by the FDA. Interestingly, both of TYl's studies were paid for by the American Chemistry Council, a trade association for BPA makers.

Each year numerous people are injured or killed on rides at theme parks, carnivals and fairs. While many of these injuries or deaths are related to poor maintenance, an alarming number are alleged to have occurred due the design of the ride itself. In another words, the ride performed exactly as it was designed to do and the rider still became seriously injured or killed. I was alarmed when I recently read an article concerning Florida theme parks, the surprising number of injuries and lawsuits and the failure of the parks to report these injuries and deaths. I recommend reading it and thinking twice about some of those rides.

Virginia does have regulations regarding amusement rides, entitled Virginia Amusement Device Regulations. While the regulations do require the reporting of any accident involving serious injury or death to the local building department, it allows the device to be put back in operation after inspected by a private inspector or inspector of the local building department, except where the owner or operator determines the cause was not related to malfunctions or improper operation of the device. Serious injury is not defined, and the lack of a central office for reporting of these injuries, could result in poor record keeping.

The CPSC has announced a recall of these dog leashes. They were sold at Family Dollar Stores from September 2007 to August 2008. The metal clasp on the leash that attaches to the animal's collar can bend or break and detach from the collar. The reports of injuries at this point in time appear to be mild.  That said, if you have one of these leashes get rid of it or send it back for a refund.

I had a case involving a defective retractable dog leash several years ago, and the hook portion of the clasp straightened out and it came flying back into my client's eye!  She became legally blind in the eye and it was obviously a horrific experience for her. The leash had been purchased at a local dollar store, and was brand new when used. I had the hook analyzed by a metallurgist who determined that it was made of a very cheap pot metal, and for just a few cents more, the manufacturer could have made the hook extremely strong and durable. That leash was made in China.

At the time of that case, in my opinion, the best leashes were made by Flexi Leash out of Germany. Their hooks and other materials used in their leashes were of good quality, and their leashes had weight limits listed as well. I currently do not have a dog, so I have been out of the dog leash market. There now may be other leashes of equal or better quality. Check the internet and do some research before you purchase.

On March 27, 2009 a group of safety advocates and victims issued a report shedding light on the alarming problems with Utility Terrain Vehicles (UTV), and highlighting in particular the Yamaha Rhino. If anyone has seen these vehicles, they are not traditional ATVs, and to me at least, resemble golf carts on steroids. The report sets out 38 deaths, many of which are believed to have occurred in Yamaha Rhinos. These Rhinos have also accounted for catastrophic injuries including the loss of limbs and other severe injuries.

The report calls for the installation of partial doors, roll cage cushions and netting on all UTV vehicles. This is due to the high numbers of prior injuries or deaths caused by limbs or bodies exiting through openings in the vehicle due to its lack of doors, roll cages etc.

Harvard professor Dr. Joseph Biederman is under fire as documents he was ordered to turn over in litigation call into question how unbiased his studies were, as he was receiving huge payments from drug maker Johnson and Johnson, and promising positive results for the company even before his clinical trials were begun. Clearly, the receipt of huge cash payments by these physicians that are providing allegedly "independent evidence" supporting the effectiveness or use of drugs made by the very manufacturer providing payments, causes one to wonder how independent these tests are, yet this has been going on for years and the Congress and public is just now becoming concerned about it!

The case that brought the above facts to light concerns states' attorney generals who have filed suit against drug manufacturers of antipsychotic drugs that defrauded Medicaid due to improper marketing.

Did you know that drowning is the second largest killer of children under age 14? In response to this, but in reality likely due to the death of former Secretary of State James Baker's granddaughter, the Virginia Graeme Baker Pool and Spa Safety Act 15 U.S.C. 8001 et seq. was passed on December 20, 2007. The requirements of the Act come into force December 19, 2008. Baker's granddaughter died in 2002 when she became trapped by a spa drain cover. Most old drain covers are flat and allow the swimmers body to become trapped against the drain cover. Younger children are unable to break free of the suction. One of the things the new Act requires is a special dome shaped cover, that helps prevent this.

Surprisingly, many municipalities and other organizations with pools are claiming that they were unaware of the Act and/or the effective date of its requirements and many claim that they will be unable to comply with its requirements. The requirements range from public pool drain covers, to special drain systems for public pools. Further, all swimming pool or spa drain covers manufactured or distributed in the United States must comply with American National Standard Institute (ANSI)/ American Society of Mechanical Engineers (ASME) standard A112.19.8 - 2007 titled Suction Fittings for Use in Swimming Pools, Wading Pools, Spas, and Hot Tubs. A nice summary of the act, including an account of the complaints by pool owners can be seen here.

As these pool owners have known about the Act for over 1 year now, I have no sympathy for them. The problem of children dying from drowning and receiving other horrific injuries from being trapped is well documented.

Sunoco chemical company announced that it would restrict sales of bisphenol-A, or BPA to manufacturers who were using the chemical in food and water containers for children under three. This move makes Sunoco the first major manufacturer to acknowledge safety concerns about BPA or bisphenol-A.

This is the most recent action regarding moves against BPA. Last week, six of the nation's largest bottle manufacturers announced they would no longer be using BPA in baby bottles. Most major retailers, including Wal-mart and Toys-R-us, have now removed products containing BPA from their store shelves.

BPA is said to mimic the effects of the hormone estrogen and cause breast, prostrate and uterine tumors, in some studies. However, the FDA concluded that there was no harm from BPA, but that opinion is considered flawed by many as the FDA relied upon many of the industries' own internal studies.

I was doing some research last night to help a lawyer up in West Virginia on a carbon monoxide (CO) poisoning case he had and was surprised to learn of the extreme danger of engine driven generators. From 1999 to 2007 the Consumer Product Safety Commission was aware of 404 fatalities involving generators and CO poisoning. We know that the CPSC cannot be aware of every incident out there, so in all likelihood the number of deaths is even greater! As most of you know, the coldest months of the year are typically November through February. Nearly half of the fatalities occurred in these months. One third of the deaths were associated with power outages, which is not surprising to me as I would figure that is typically when the generator would be in use. The report can be found here .

The United States Supreme Court rejected arguments that federal regulation preempted state lawsuits against drug makers. In the case of Wyeth v. Levine, the injured plaintiff Diane Levine, had her arm amputated after she was injected with Phenergan, made by Wyeth. Wyeth argued that federal approval of the Phenergan and its warning label protected the company from lawsuits. The case is seen as a surprise given that the Bush administration had argued that once a drug's warning label is approved by the FDA, consumers cannot pursue state law claims if they are injured by the drug. Justice Stevens, who wrote the majority opinion, said that Wyeth could "unilaterally strengthen its warning", especially after if learned of at least 20 other incidents prior to Mrs. Levine's injury. The FDA is charged with monitoring 11,000 drugs!!!

This outcome was shocking to many given the fact that the Supreme Court had earlier held that suits against medical device makers were preempted, in the case of Riegel v. Medtronic, Inc., 128 S. Ct. 999 (2008). In Riegel, the Supreme Court held that makers of medical devices were immune from liability for personal injuries as long as the Food and Drug Administration approved the device before it was marketed and it met the agency's specifications.

I agree with the Wyeth decision. The FDA is overworked and underfunded. As recognized, in the opinion, state court lawsuits provide a valuable service of uncovering problems with drugs and a "complementary form of drug regulation". With over 11,000 drugs, the FDA simply cannot be expected to catch and/or solve all problems. Without the ability to file suit, the consumer is left unprotected.

A recent case of interest is Centra Health v. Mullins. This is a landmark decision by the Virginia Supreme Court, on a key area of the law that usually comes up in the context of nursing home cases. In this case, the 84 year old plaintiff was admitted to the hospital for a broken hip he sustained in a fall. Due to negligent insertion and maintenance of a catheter, the man developed a urinary tract infection. After surgery for the broken hip, hospital staff failed to treat and recognize the infection and discharged the man back to the nursing home. The man returned to the hospital for treatment of the infection, and stayed at the hospital until his ultimate death.

The man's Estate asserted a wrongful death claim, basing the claim on their assertion that his death was caused by sepsis which resulted from the defendant's failure to treat the urinary tract infection, and as an alternative claim, they filed a survivorship action, for injuries sustained by the plaintiff prior to his death, the infection and its accompanying complications.

As a side note, in Virginia, the injured party's Estate must typically choose whether they are presenting a claim for the party's death, or for the pain and suffering for the injury while the person was alive. The recovery available under each theory is dramatically different.

CBB recalled the following toys Fishing Games, Rattles, Pull-A-Long Cars, Mini Pull Back Cars, and Cartoon Bubble Guns due to the toys containing small parts which can separate from the toy and become choking hazards for small children. The mini pull back cars and bubble guns have surface paints which contain excessive levels of lead, violating the federal lead paint standard.

These toys were sold at dollar stores and toy stores. A detailed chart and photographs of the toys and their product numbers can be found here.

I read recently where the Consumer Product Safety Commission (CPSC) just recalled 200,000 children's play yards. These "Rainforest" model play yards were made by Simplicity Inc., which is now out of business, for Fisher Price. There is a danger of the side rails collapsing and potential injury or death to the children or infants. Apparently CPSC officials knew last year that these side rails were collapsing, but felt that it did not "rise to the level of a recall". 

This article just reinforces my thoughts that you cannot depend on the CPSC to timely act and protect your children. It is my opinion that this agency is underfunded and overworked and hope that the new administration will provide additional funding and manpower, so that the agency can see that dangerous and defective products are taken off the shelves. Consumers need to know that just because a product is in the marketplace, does not mean that it has been tested or evaluated by the manufacturer or a government agency. If consumers experience safety problems with a product, they need to contact the CPSC. Apparently, it was the over 1300 complaints to the CPSC that finally motivated this recall!

To the credit of the CPSC, they only have 420 employees to police over 15,000 kinds of consumer products. In my opinion, the agency is woefully understaffed. The CPSC does not test or certify products before they are sold. The sellers or importers of products are charged with insuring that their products comply with government standards or regulations. Unfortunately, that means that we consumers pay the price through serious injury or death when a negligent product manufacturer or importer sells a product that has not been adequately designed, tested or inspected. My experience with the CPSC over the last 11+ years has been that they typically do not become involved in the investigation of a product until they have received several consumer complaints, and there is the potential for serious injury or death. They just have too few staff to go out and start randomly testing or inspecting items to see if they comply with government regulations. Luckily, with the internet, consumers can research products before they purchase them. I always recommend "googling" an item on the internet before purchasing it, and checking the CPSC website to see if the item or its manufacturer have any recent recalls.

In what is becoming an all too common occurrence, the Consumer Product Safety Commission has announced another recall involving infant cribs. The manufacturer of the cribs is Jardine Cribs, and the first recall was in June of 2008, affecting 320,000 cribs. The CPSC has now added another 56,450 cribs. The cribs were sold at KidsWorld, Geoffrey Stores, Toys "R" Us, and Babies "R" Us stores nationwide, and at Babies "R" Us.com, from March 2004 through January 2009 for between $220 and $330. The problem with the cribs is that the side rails can break, creating a gap for the infant to potentially fall through or be strangled in. Consumers have reported that their infant or toddler has broken the slat while in the crib! These cribs were made in China.
 

Many of you will recall last year's crib recall involving over 600,000 Simplicity cribs. These cribs had a problem with the side rail coming off track, creating a gap that the infant or toddler could become trapped in. These cribs were made in China as well.

I was involved in suing one of the largest child product manufacturers in the United States several years ago, involving a crib. Problems with the crib developed as a result of efforts by the manufacturer to decrease costs in the manufacture of the crib, without analyzing the potential safety risks. The company ended up paying a large fine to the CPSC as a result of reporting violations with the CPSC. The case settled for a confidential amount. I have not handled cases involving these latest manufacturers but it would be interesting to find out what, if any, product testing and evaluation was done by the manufacturers or importers. An obvious motivation for having products made in China is their relative cost compared to products manufactured here the United States. Many have suggested that quality and durability are sacrificed with these low cost imports. From many of the Chinese made products I have seen, I have to agree.

What can you do to determine if a product is safe? The first thing I would recommend would be to get on the internet to see if the product has been reviewed by any type of consumer group. The second thing I would do is to visit the Consumer Product Safety Commission's website to research the product and the manufacturer, to see if there are any warnings or recalls out. Many people have complained that the CPSC has been slow to act or to expand recalls, so you may find the item you are checking on is nearly identical to an item currently being recalled. Be very careful when purchasing children's items from yard sales, Ebay or used children's items stores. I have personally seen many recalled items still for sale on these venues, and in fact bought two of the recalled cribs that I needed as exemplars for my crib case off of EBay, and after the highly publicized recall!!!! Lastly, if the item looks and feels cheap, it probably is. In years of doing this work, just because a manufacturer or retailer is selling the item, does not mean that anyone has done any type of testing or safety evaluation of the product!! Many people are surprised to learn that the CPSC does not evaluate all toys or children's product for sale in the United States. Currently, no organization in the United States does that. Essentially, manufacturers are charged with policing themselves. Only when the CPSC receives complaints about a product, do they become involved.