Accident and Injury Lawyer Blog

A Pennsylvania lawyer filed a wrongful death lawsuit yesterday on behalf of the family of a man who died after allegedly receiving contaminated heparin from Covidien, a Massachusetts supplier of heparin. Plaintiff's complaint alleges that Covidien failed to recall batches of heparin that it knew or had reason to know may be contaminated.

The focus of the heparin cases has been on Baxter, which supplies approximately half of the heparin used in the United States. But Scientific Protein Laboratories supplied the active ingredient in heparin for both Baxter and Covidien.

I don't know enough about the timing of the Corvidien withdrawal and this man's use of heparin to know whether this is also a failure to recall case. But if this man did receive heparin after others had withdrawn heparin from the market, you can bet Corvidien's lawyers will not be racing to the courthouse steps to try that case.

A tort reform group has named Delaware the #1 state in terms of legal climate in the country for the 5th consecutive year. Survey respondents assigned each state a grade for of 12 different factors affecting the states' tort liability system. Delaware ranked at the very top for a host of categories: stringent venue requirements, treatment of class action cases, punitive damages, timeliness of summary judgment, discovery, judge's impartiality (read: anti-plaintiff), and judge's competence, and overall treatment of tort claims. The last category is actually "tort and contract cases" although they don't really care about how contract cases are treated. This is just code for pretending this is not all about tort reform. Delaware did drop to 13th on jury predictability, and a 10th on jury fairness.

I don't think history shows that Delaware juries are unreasonable. But many Delaware laws both directly and indirectly discourage tort lawsuits. One of my favorite Delaware laws involves lawyer's fees in medical malpractice cases. Delaware does not place a limit on the damages a claimant may recover. But it caps plaintiffs' medical malpractice lawyers' fees at 35 percent of the first $100,000 in damages, 25 percent of the next $100,000, and 10 percent of any remaining award.

This law is great for those medical malpractice victims where they are able to find a lawyer to represent them. But many lawyers do not take medical malpractice cases in Delaware simply because of the decreased fees. It is not unlike Delaware passing a law raising minimum wage to $20 an hour. Some people would really fare well but others would lose their job. With this medical malpractice law, people lose the opportunity to bring just claims.

Moreover, the limit on fees decreases the overall quality of Delaware medical malpractice lawyers. Conversely, because the possible damage awards are unchanged and the exposure is there, negligent doctors and their insurance companies can find the best malpractice trial lawyers to provide their defense, leaving a playing field between doctors and victims that is far from level.

Blog posts of interest to personal injury lawyers:

*The new IPO (Legal Process Outsourcing) News Blog has an interesting post on the increasing demand for lawyers in India. Demand for lawyers in India has risen such that some lawyers are seeing salary increases of up to 100%. I'm not sure that a lot of personal injury lawyers are going to come out of India for obvious logistical reasons but I would not be surprised if support staff from India becomes far more common over the next 10 years.

*The Maryland Personal Injury Lawyer Blog has a post on a defense medical malpractice lawyer who questioned the fairness of jurors in the entire city of Baltimore.

*Dave Swanner's always excellent South Carolina Trial Blog suggests giving employees Friday afternoons off. This is a great idea but I worry about taking care of new and existing clients who call in on Friday afternoon.

*The Illinois Trial Practice Weblog has a post on the sanctions incurred when one lawyer could not control his client in deposition. These people rarely sneak up on lawyers; you can usually spot a client that you cannot control from a mile away. Obviously, there is a sliding scale of what a lawyer will tolerate depending upon the size of the case but there has to be some sort of minimum hurdle of decency a client has to be able to advance. This client did not meet that hurdle and 99% of the time, this is foreseeable to the lawyer who agreed to provide representation.

*My Shingle has a blog post about Carolyn Elefant's new book Solo by Choice. I have not read the book but the reviews have been excellent.

*The Birmingham Injury Blog has a post on mandatory arbitration clauses in nursing home contracts. This issue is not going away. Some courts are going to acknowledge the insanity of limiting a patient's rights given the unequal bargaining power of the nursing home. Other states are going to say that a contract is a contract.

*Also from Alabama (and also a Justia blog), the Alabama Product Injury Lawyer Blog has a blog post on drug companies and their propensity to ghostwrite studies about their drugs or medical devices and then having doctors agree to author the study to lend credence to what is often the propaganda of the drug companies.

*The New York Personal Injury Lawyer Blog and the Maryland Lawyer Blog posts on a blog called ER Stories, which appears to be made up stories of malpractice cases from an undisclosed doctor. To make it fun for the whole family, the New York Personal Injury Attorney Blog post title is Malpractice, Oral Sex, and Urban Legends.

I hope these posts are of interest. For the best and consistent lawyer blog roundups on the Internet of interest to injury and malpractice lawyers, visit Brooks Schuelke Personal Injury Law Round-Up #59.

Workers' compensation provides a nice remedy for people who suffer injuries on the job, regardless of fault. The downside is that if you have a serious or fatal accident that is the fault of your employer, you recovery is limited and does not - by any definition - make you whole.

One backdoor around the exclusivity of the workers' compensation states in many states, like Florida or Texas, for example, is if the employer is grossly negligent, they can be a claim for negligence.

In Vermont, a Chayer v. Ethan Allen, plaintiff was employed at the Ethan Allen's furniture manufacturing plant in Orleans, Vermont. Plaintiff worked on a double-end tenoning machine which is essentially a conveyor belt on which furniture rests as they move forward the machine’s saw blades. Plaintiff inadvertently placed his hand on the belt and his hand caught in a “pinch point” and was pulled into the blades which cut off his hand. He had tried to turn off the machine’s shutoff switch but was unable to do so. Plaintiff personal injury lawyer claimed that Ethan Allen knew and discussed this very risk and did not take the necessary precautions. Specifically, Ethan Allen knew that the switches, including the shutoff switch which was critical in this case, were located in such a way as to pose a danger.

Last week, Vermont Supreme Court went in a different direction, holding that the exclusivity of workers' compensation bars an injured worker's claims for gross negligence against an employer-employee safety committee The court found that all of Plaintiff's claims under Vermont law amount to "nothing beyond a breach of the employer’s nondelegable duty to maintain a safe workplace."

Another thing I found interesting was the Plaintiff's lawyer's creative effort to backdoor the workers' compensation laws by suing the employer-employee safety committee. How that would work from a liability standpoint, as the Vermont Supreme Court points out, is difficult. Would committee members be liable individually? If so, would dissenting or abstaining members also be responsible for the committee's decisions? If so, how was he or she negligent. The idea is a stretch because it is hard to think that a committee with no real financial power could liable for failing to convince Ethan Allen to do the right thing. But, again, this Vermont lawyer was in a tough spot trying to get a recovery in this accident case. I doubt there was a serious settlement offer on the table. Obviously, given that the man hand was amputated, this case underscores the weakness of the workers' comp remedy in cases where the employer negligently caused the Plaintiff's injury.

Of course, when you read this opinions, you are required to assume all facts most favorable to Plaintiff. So Ethan Allen might have good explanations for all of these allegations. Still, it did not leave me with a fuzzy feeling toward one of my favorite furniture stores.

To read the entire opinion, click here.

On Friday, a Louisiana jury in West Carroll Parish awarded $4 million to the family of a man who died in a 2002 crash. According to the lawsuit, a faulty Teledyne Continental Motors engine was to blame for the accident that killed the plaintiffs' decedent.

Louisiana lawyers Daniel Barks, Richard Fewell Jr. and Dion Young represented the family in this defective products lawsuit.

On Friday, a Dallas County jury awarded $87 million to a man who was partially paralyzed in a moving-truck accident with $87 million in his lawsuit against U-Haul.

Plaintiff’s lawyer Ted Lyon told reporters after the verdict that U-Haul had faulty emergency break and worn down gears. The Plaintiff rented a U-Haul to help his daughter move. When he got out of the truck, it started rolling backwards and knocked him down. Now the formerly active retiree cannot walk and requires around-the-clock care.

Aided by what I think is the second highest personal injury jury award in Idaho history (there was a $30 million dollar malpractice award in 1999) the average personal injury award in Idaho was $429,119, according to Jury Verdict Research that complied data from 2000-2006. Before Idaho personal injury lawyers and their clients overestimated the real value of injury cases in Idaho, this number deflates dramatically when using the median instead of the average personal injury verdict. The median verdict is $17,000. Idaho personal injury plaintiffs obtained a recovery in 56% of the cases that went to trial during this same time period.

Medical malpractice claims statistics from the Oklahoma Insurance Department are certainly not music to the ears of Oklahoma medical malpractice lawyers and their clients.

In 2006, 805 medical malpractice claims that resolved in Oklahoma. The malpractice cases was dismissed in 59, or almost 70%. Of the remaining medical malpractice case, 181 settled and 20 went to trial. The average claim settlement or award in 2006 was $257,887. The total amount paid in settlements and verdicts was just shy of $50 million.

California personal injury plaintiffs are among the best compensated injury victims in the country but that California juries need convincing that the defendant is liable. California’s median compensatory award in personal injury cases is 149,000, dwarfing the national median of $34,550. But California juries only award damages in 44 percent of personal injury case that go to verdict. Nationally, plaintiffs prevail in 52% of personal injury cases.

These California personal injury verdict numbers, not median or average settlements in personal injury cases. But settlement values largely reflect the median verdicts.

A U.S. District court jury in Missoula, Montana awarded a Bigfork doctoral student $5.3 million, finding Fireman’s Fund Insurance Company acted in bad faith. This verdict, which included $3.5 million in punitive damages, is the largest bad-faith insurance verdict in Montana history.

Plaintiff, a 32 year-old salmon ecologist, suffered brain injuries in a head-on collision. Her insurance policy included $1.5 million in uninsured motorist benefits.

Why did the jury find bad faith in Fireman’s Fund’s refusal to pay? Well, in the four years after Fireman's Insurance received notice of plaintiff’s, it did virtually no investigation at all. Fireman’s Fun collected one lousy page of her medical records, never sought a statement from the Plaintiff, or requested an IME or did anything to support their denial.

I’m as cynical about insurance companies as the next personal injury lawyer. But I have to believe that this case fell below the radar of Fireman’s Fund and this was the act of a few isolated claims adjusters because this case is just the classic definition of bad faith. This case reads like John Grisham’s book Rainmaker. Insurance companies just do not act this way in jurisdictions that have first party bad faith because they know that they are inviting this kind of claim and publicity.

We wrote last month about conditions at an Ohio nursing home named Westside Health Care. It was one of the worst cases of inadequate care our nursing home lawyers have ever heard. After a police inspection/raid, one police officer called the conditions at this Ohio nursing home as "worse than any crack house that they'd ever seen." That paints a pretty clear picture I think.

Typically, the silver lining in this kind of cloud is that is people shape up and get their act together. That has to be the way it works. Right? Well, police this week raided this Ohio nursing home for the second time in just over a month.

At some point, the state of Ohio has to take over this nursing home until these patients can be transferred elsewhere. There is just no other choice.

In litgation that is a byproduct of the Ford Explorer rollover lawsuits, Ford Explorer owners will be "compensated" in a settlement because of the loss of value of the Explorer because of the perceived rollover danger. This settlement covers about 800,000 people who purchased Explorers in California, Connecticut, Illinois and Texas.

Unfortunately, the only people who will get a significant recovery will be the lawyers who brought these claims. Explorer owners will only be eligible for vouchers for $300 to purchase new vehicles Ford or Lincoln Mercury vehicles (or $500 off the Ford Explorer). Practically, the car dealers will just negotiate a higher sales price on the car the sale of the car, reducing the list price less than they otherwise would.

Accordingly, this settlement is worthless to everyone except for the lawyers bringing these claims. The frustrating thing about this is that 800,000 people see this settlement and think, "Geez, what a scam, the only people that really profit from this are the lawyers." For personal injury victims and their lawyers, this does not help when one of these 800,000 people shows up on a jury.

In a 4-3 decision, the New Jersey Supreme Court affirmed last week the dismissal of a personal injury lawsuit filed by a minor league hockey spectator who was struck by a puck during warm-ups. The New Jersey high court ruled that the arena had complied with its obligation to protected spectators to the extent reasonable. The three dissenting justices contended that the arena should have posted warnings about the potential hazard of hockey pucks leaving the arena.

I think I agree with the outcome because I think there should be some sort of strict liability in these situations. But, taking off my personal injury lawyer and putting my citizen hat on, I agree with the majority opinion based on New Jersey law as it is presently constituted. Any reasonable person who attends a hockey game knows or should know that pucks might come flying off the ice. Providing a warning would be superfluous.

State Farm has taken a lot of PR punches in Louisiana over Hurricane Katrina. But that does not mean Louisiana juries are not fair. Last week, a Hurricane Katrina case that went to the jury resulted in a defense verdict for State Farm, denying the claim of a Slidell couple seeking $625,000 from the insurer for damage they allege was caused by a sewer backup into their home during the storm. The jury did not buy that a sewer backup caused the damage.

Interestingly, before trial State Farm offer $10,000 to settle the case. The jury did award the Plaintiffs $8,259 for wind damage from the hurricane. In this case, State Farm got it about right.

The Boston Globe reports that a Vermont woman settled her lawsuit against a state contractor who had custody of a developmentally disabled violent offender. The escapee attacked the woman after contractor tried to cover up the escape and failed to notify police.

In Jackson v. Sunforest OB-GYN Associates, the Ohio Court of Appeal affirmed the trial court’s decision in a medical malpractice shoulder dystocia/brachial plexus case not to strike for cause two jurors who said they were biased towards doctors. The jury then found that an OB-GYN was not negligent in delivering a baby who suffered a brachial plexus injury.

I do not like this opinion. The Ohio Court of Appeal believes, as most jurisdictions do, that as long as the juror says they can be fair and reasonable in spite of their bias, it is not an abuse of discretion of the trial judge to sit the jurors. But the truth is that even if you are Rush Limbaugh biased, you are going to say that you can be fair and reasonable. So practically, you are tipping off your bias as much as you can when you say “I have a bias.”

One question I would have for the plaintiff’s medical malpractice lawyer is why not use a preemptive challenge against the jurors? Unless the rest of the jury panel was awful – I’m thinking doctors and nurses awful – I cannot imagine why these jurors were not stricken.

A Florida teenager and his family were awarded $30 million after a five week trial yesterday by a Broward County jury in a medical malpractice lawsuit against Westside Regional Medical Center in Plantation against the OB/GYN who delivered him 17 years ago. The family's medical malpractice lawyer had requested $24 million in damages. Underscoring the jury’s view of the case, they awarded $6 million more than the lawyer requested. Its decision was unanimous. The award is reportedly the largest medical malpractice award in Broward County.

The first line of the Miami Herald article on the case says that the plaintiff was happily posing for the camera and showing off the same leg braces that subjects him to “constant teasing and prodding” from other teens at his high school. This young man suffers from cerebral palsy and has the classic symptomtology of cerebral palsy - spastic legs at the level of a child years younger than his is. So this line really tugs at your heartstrings for sure. But I the cynic in me – and the optimist – wonders whether the boy told the Miami Herald exactly this. Teenagers can be cruel for sure but rarely do they pick on people who are suffering from cerebral palsy. I don’t remember anyone in my public high school picking on a boy like this plaintiff who has cerebral palsy.

In any event, while I’m sure the Plaintiff would rather be 100% healthy, this was certainly a good day for help and helps him lead a life where he finds himself frequently overcoming obstacles.

A Billings, Montana jury awarded $1.2 million dollars on Friday to a former BNSF Railway employee, who suffered a spinal injury two years ago. The jury found that BNSF had violated the Locomotive Inspection Act. The award was $840,000 in lost wages and $360,000 for pain and suffering.

Fredric A. Bremseth, a Denver lawyer who handles a lot of railroad cases apparently, represented the Plaintiff. Michelle Friend, a Billings, Montana lawyer, represened the railroad.

Broward County, Florida Judge Jay Spechler abruptly resigned Monday after the chief judge barred him from the courthouse. Chief Judge Victor Tobin had reassigned Judge Spechler last week to traffic and parking matters at satellite courthouses until his resignation Monday.

Judge Spechler was in a war with United Auto who sought to disqualify him from cases involving the Florida-based carrier because the judge had a “pre-disposition, prejudice and bias” against its auto accident lawyers who were defending no fault (PIP) cases in Florida. Judge Spechler estimated that two thirds of his cases are PIP disputes with this insurance company. State Auto is the market share leader in car insurance in Florida. When you put two and two together, you get a lot of acrimony.

Apparently, Judge Spechler made more enemies that just State Auto. Courthouse sources said County Court Judge Jay Spechler’s reassignment came after he got into a verbal altercation with fellow Florida County Court, making comments about the judge’s sexual orientation. The impression I get is that new Chief Judge Tobin was no fan of Judge Spechler, who was closely aligned with former Chief Judge Dale Ross, who resigned last May.

Judge Spechler is apparently going to a mediation firm. Let me make a guess: he won't be handling a lot of State Auto mediations.

Missouri Lawyers Weekly reports on a recent medical malpractice defense verdict after an 8 day trial in Buchanan County, Missouri in favor of an obstetrician and nurse involving a difficult deliver almost 12 years ago.

Shoulder dystocia can result from a difficult childbirth where the baby’s head is able to clear but the shoulders - typically one shoulder - will not come out. Not surprisingly, this problem develops with larger babies.

The doctor in this case argued that he used fundal pressure and forceps to clear the shoulder. Defendants further claimed there was no shoulder dystocia and any complications the baby had must have occurred in utero (I’m assuming the last part).

Interestingly, the Plaintiffs videotaped the delivery which I imagine gave the jury a far better idea as to how the delivery went then you would see in most cases.

Shoulder dystocia cases typically are not, thankfully, medical malpractice cases because the injuries tend to resolve. When they do not, the child may suffer permanent brachial plexus injury or mental impairment. Whether shoulder dystocia is caused by medical malpractice of the delivering doctor depends on the facts of the specific case.

The Times Union (Albany, New York) reports that after a three week trial before Supreme Court Judge Michael Lynch, a jury awarded Watervliet man and his wife $1.87 million in a medical malpractice lawsuit Tuesday against a doctor who Plaintiffs alleged failed to detect and disclose a high glucose condition leading to a stroke.

Specifically, the jury believed it was negligent not to advice the Plaintiff of the results of a blood glucose study that had been done. The jury found the doctor's negligence in this regard was a a "substantial factor" in his stroke. The doctor's lawyer contended that there is no evidence the Plaintiff would have acted had he been given the results of the blood glucose test.

Samaritan Hospital was also a named defendant but the jury did not find that the hosptial was negligent.

According to an article in Missouri Lawyers Weekly, a Jackson County jury recently found for the defendant doctors in a medical malpractice claim for failure to diagnose Plaintiff’s appendicitis, causing the appendix to perforate, leading to peritonitis. Fortunately for the Plaintiff, she had already received a settlement from other doctors who have provided care to her from this incident. At trial, the defendant doctors pointed to the empty chair defendants.

It might have made sense to settle out with the other defendants in this case. We don’t know what the numbers were. But a trial is a search for blame and it is always easier for a jury to blame someone who is not in the room.

North Carolina Academy of Trial Lawyers looked at the 5,401 med-mal cases were filed in North Carolina from 1998 through 2006 and complied a few statistics. The median jury award in medical malpractice cases was $301,300. The largest medical malpractice award was $8.1 million.

Looking at personal injury cases in North Carolina generally, Jury Verdict Research estimates the median award in North Carolina is $10,000. Personal injury plaintiff receive damages in 61% of cases that are tried (national average is 53%).

The average jury verdict in medical malpractice cases in North Carolina is relatively low. I do not have the national median for medical malpractice cases in front of me but the average - as opposed to the median which makes a difference - is over $1 million. The national median for personal injury cases generally is $38,179 which means that North Carolina and the nationwide plaintiff recovery probability, the number of plaintiff verdicts to total verdicts, is 53 percent.

The median personal injury award in North Carolina is low but a part of that is due to antiquated jurisdictional limits in North Carolina. Civil jurisdiction for district court, which does involves a judge instead of a jury - is proper for cases involving amounts in controversy of $10,000 or less. Many states have jurisdictional amounts that are five times North Carolina's $10,000 maximum. This leads to more jury trial in small cases thereby decreasing the overall average.

With respect to North Carolina malpractice cases, I think that John Edwards record notwithstanding, it has been a tough history for medical malpractice lawyers and their clients in North Carolina. One old study I saw found that North Carolina medical malapractice plaintffs win 11% of the cases that went to trial.

Another study I read looked at eighteen jury verdicts from North Carolina. In each case, the medical malpractice insurance company obtained expert evaluations on the question of liability. The study divided the reviews into three categories: (1) probable liability, (2) uncertain liability (when experts disagreed), and (3) unlikely liability. The study found that plaintiffs won 10% of the trials in which the doctor's care had been considered good, 17% of the cases where the experts were uncertain, and 50% of the trials where the experts thought there was liability.

I wonder about the experience/quality of the medical malpractice lawyers who lost the cases where there appeared to be liability because quality malpractice lawyers can make a huge difference not just at trial but in discovery. But the take home message is clear: medical malpractice cases are tough anywhere but particuarly in North Carolina.

Interesting editorial yesterday in the Las Vegas Review-Journal regarding the Nevada Board of Medical Examiners posting medical malpractice lawsuits filed against Nevada doctors. Apparently, the Nevada Board stopped posting this information about three years ago on it website. No one paid any attention until the recent southern Nevada's endoscopy clinic crisis.

You might think a medical malpractice lawyer would be unequivocal that this information should be made public. I appreciate the argument in this regard. But I do not know that it is necessary to post information about the filing of a lawsuit because some medical malpractice claims are groundless (or course, many medical malpractice defenses are groundless too but that is for a different blog). Of course, medical malpractice lawsuits are public information so anyone can post information about the filing of a lawsuit. The question is whether government agencies should be the conduit of this information.

Nevada Governor Jim Gibbons is demanding that the information be put back up and that three members of the Nevada Board resign because of – surprise! – conflicts of interest. I’m inclined to agree with Governor Gibbons but it is a slippery slope of attaching meaning to the mere filing of a lawsuit.

B. Braun Medical recalled its heparin blood thinner after lreports that it contained a earning "heparin-like contaminant" from a supplier linked to deaths and allergic reactions in Baxter's Heparin, which has been linked to serious allergic reactions and at least 19 U.S. deaths. The heparin recalled by B. Braun Medical is sold to hospitals as a premixed solution in intravenous drip bags.

No injuries have been reported yet from B. Braun Medical's heparin. I have no idea how long it had been out in the marketplace. Hopefully, not long enough to cause any heparin users - who usually have enough problems without contaminated heparin - any serious injury.

The Maryland Personal Injury Lawyer Blog has a post about a new Alaska Supreme Court opinion on the discoverability and admissibility of the financial records of "professional" expert witnesses in Alaska.

A woman who was paralyzed after her Ford Explorer rolled over should receive $82.6 million in damages against Ford Motor Company, including $55 million in punitive damages, a California appellate court unanimously ruled last month. Ford had appealed the jury's award, arguing that the punitive damage award was improper in light of the Supreme Court's ruling in Philip Morris USA v. Williams. The California 4th District Court of Appeal had previously reduced the award from $369 million to $82.6 million.

"Based on our review of the record, plaintiffs' counsel was not asking the jury to punish Ford for harm done to third parties," wrote Justice Gilbert Nares in his 108 page opinion. "Rather, counsel was discussing the repeated nature of Ford's actions in arguing the reprehensibility of Ford's conduct. That argument was entirely proper and did not create a 'significant risk' the jury would punish Ford for injuries to third parties."

You would that these kind of economic and public relations would motivate car companies to make their cars safer and not allow for compromises in design the way Ford did with the Bronco and the Explorer. But car making is big business and while this verdict sends shock waves throughout the product defect lawyer community, it has little impact on Ford’s bottom line.

We are seeing similar fact is the Yamaha Rhino ATV lawsuits that are being filed around the country. The company chalks up the Yamaha Rhino rollovers to the fact that ATVs are generally unsafe, as opposed to doing everything that is reasonable to make them as safe as possible. Implicit in Yamaha’s calculus is that the injuries sustained in Yamaha ATV cases are going to lead to less in litigation related costs then they will make in sales of the Yamaha Rhino ATVs. This is why states like California, unlike Maryland for example, allow for punitive damages in these kinds of cases. Yamaha should not be surprised if they end up just like creates revenues sufficient to sustain the legal costs, settlements and verdicts that Yamaha will undoubtedly endure. As the Ford Pinto cases told us years ago, companies with high selling and profitable products make these kind of painful cost/benefit decisions all of the time