Anyone who is currently out of work and is not receiving unemployment compensation or their currents comp. benefits are about to stop, call the unemployment office to ask about an extension.

See it here.

In this case, there was none of the insureds initials next to the UM/UIM coverage designations on the application as in some other cases.  Thus, there was no "written request" according to the court.  The Court enforced the insurance policy and nullifies the lower UM/UIM coverage limits, thus deeming the UM/UIM coverage equal to the bodily injury limits.  The coverage for UM/UIM is now $250,000.

A federal lawsuit was filed against the driver and settled with two insurance companies for general releases. A separate state action was filed against Ford Motor for defective design. After the federal lawsuit was settled, Ford filed a Motion for Summary Judgment arguing that the execution of broad releases in the federal lawsuit that released "all other firms, person," etc. released the parties to the state suit.

The Superior Court holds that (at most) this is a unilateral mistake and the releases (without any limitations or indications that the state lawsuit parties were not released) were broad enough to effectively release the product defendants. The trial court was reversed.

See the Court's full opinion here.

From the Towanda DailyReview.com:

Robert Packer Hospital reported Monday that David Campbell of Sayre who was critically injured in an area ATV accident on Sunday has died.

Campbell, 55, had been riding a 2005 Honda Rancher ES at 7:45 p.m. on July 6 on Marcy Hill Road in Monroe Township when he was thrown from his vehicle, according to state police.

Campbell, who police stated had not been wearing a helmet, had sustained a severe head injury and was flown to Robert Packer Hospital, police stated.

Here's more coverage of this horrible accident from The Morning Times.

Garland Reynolds and his wife, Bonnie, were awarded $3.5 million in connection with the 2002 rollover accident that claimed the life of their son, Matthew. The Reynolds sued GM in 2006, alleging that the design of the 1995 Chevrolet Blazer created stability issues that contributed to the fatal wreck. The jury awarded no punitive damages.

A jury of five men and three women deliberated for nearly three days in U.S. District Court in Gainesville, GA before finding GM at fault.

The jury said to General Motors that the Blazer is unsafe and it should not have been designed without proper stability, attorney for the plaintiff said.

On June 3, 2002, Bonnie Reynolds was driving a 1995 Chevy Blazer on the Interstate with her son in the front seat when the Blazer was struck by a drunk driver who lost control of his Pontiac Sunbird.

The Blazer flipped several times and Matthew Reynolds was ejected. He died the following day in an area hospital.

The driver who struck the Reynolds' car was later convicted of first-degree vehicular homicide and is serving a lengthy prison sentence.

Plaintiffs presented evidence at trial of other rollover accidents involving the Blazer. The plaintiffs contended that the make and model was built with too high a center of gravity for the wheel base, and that the "track," or distance between the wheels, should have been widened to prevent stability problems.

Blazers manufactured from 1995 through 2002 have similar design flaws. The Blazer was subsequently phased out in favor of the TrailBlazer, which has a wider wheelbase. 

Evidence presented at trial called for a recall.

General Motors maintains that the vehicle is safe.

Company spokeswoman Geri Lama said GM was disappointed in the jury's verdict. They contend that the rollover accident is the sole fault of the drunk driver who struck the Blazer. GM is considering its options of an appeal.There was never an offer to settle, according to Plaintiffs attorneys.

GM was represented by a team of King & Spalding attorneys led by partner W. Ray Persons,

The case, in the Northern District of Georgia, is Garland Reynolds Jr. et al., v. General Motors Corp., No. 2:04-CV-106.

Blocked Departure Area Not an Inherent Risk of Skiing

As Patricia Clarke was preparing to disembark from a chairlift at the Peek ?N Peak ski resort in February of 2003, she noticed that there were children standing around the unloading ramp. Afraid of running into and hurting one of the children, Clarke straddled one of them, fell and injured her leg.

Clarke brought a personal injury suit against the ski resort, alleging that the operator of the chairlift should have stopped the lift and cleared the exit area. Peek ?N Peak moved for summary judgment, arguing that skiing is a dangerous activity and Clarke assumed the risk. A magistrate judge recomended that Peek ?N Peak?s motion be denied.

In its opinion, the District Court analyzed the assumption of the risk doctrine under New York law, determining that the ski resort?s liability hinged on whether it created a dangerous condition over and above that inherent in the sport of skiing. While exiting a chair lift did contain some inherent risks, colliding with another skier was not an inherent risk of exiting the chairlift. By allowing children to gather in the exit area, Peek ?N Peak created a unique circumstance that made the act of skiing even more risky.  

Additionally, the chairlift operator?s failure to slow or stop the lift and clear a path was in violation of both Peek ?N Peak?s policy and New York state regulations. As such, there was a question of fact as to whether the ski lift operator had been properly trained to run the chairlift.

The District Court denied the motion for summary judgment based upon assumption of risk.

Clarke v. Peek 'N Peak Recreation, Inc., ---F.Supp.2d ---, 2008 WL 732794 (W.D.N.Y., Mar. 18, 2008)

A former pro football player who claimed that he sustained severe back injuries when he fell at a grocery store was awarded $1.1 million. In 2004, Jerry Aldridge, then 48, slipped and fell at the Brookshire Brother's Grocery in Jacksonville . Aldridge, who underwent a lumbar fusion and a cervical fusion after two years of conservative treatment, claimed that he slid on grease that had leaked from a rotisserie chicken container. At trial, he was awaiting medical approval to return to work. Defense counsel argued that neither the store nor its employees had actual or subjective awareness of the alleged grease spill prior to the miscue. The defense also pointed to medical records showing that Aldridge had preexisting back and neck problems, including a herniated disc.

A woman who claimed two cervical herniations in a rear-ender with a cement truck recovered $345,729. Magda Vergara claimed that spasms and pain have forced her to stop working as a school teacher. She was at a light in her mid-sized SUV when she was struck by a Quickcrete Ready Mix truck. Its driver admitted liability. Vergara also sustained a laceration to her right eye. Vergara also claimed that she has suffers from post-traumatic stress disorder that includes flashbacks. Defense counsel argued that she only sustained soft-tissue injuries to her neck.

On-board computers, electronic logging, GPS systems and satellite and wireless tracking can provide a wealth of information about an accident and the history of the driver and vehicle.

"Everything that touches a truck these days frankly is electronic," said Morgan Adams, chair-elect of the trucking litigation section of the American Association for Justice.

He noted that on-board recorders can track over 175 characteristics, such as vehicle speed, hard-braking incidents and vehicle maintenance.

This information is a "boon" to plaintiffs' attorneys, who are using it to bring claims against trucking companies for negligent supervision and negligent maintenance as well as spoliation of evidence, said defense attorney Kenneth Abbarno of Reminger & Reminger in Cleveland.

Truckloads of data

The main source of information is the "black box," also known as an electronic control module or electronic data recorder, which records events like hard-braking, cruise control settings, when the truck traveled at various speeds and sudden decelerations.

Newer electronic on-board recorders, known as EOBRs, monitor the speed of a truck as well as the number of driving hours, and can indicate every time a driver goes over the allowed number of hours or drives over the speed limit.

Some carriers have replaced hand-written logbooks with GPS satellite and wireless devices that track a driver's schedule and route and beam the information back to the company.

Other devices are now being introduced that use video cams and radar to track and warn of potential hazards, including blind spots or when a driver is drifting out of a lane. The data is then uploaded to the company computer in real time.

The combined data can help reconstruct an accident.

There was a time in this country that an entity like the Scranton Diocese would support unions and their creation instead of attempting to bust them.

Starting this fall, the odds of being picked for jury service are likely to increase for some Pennsylvanians and decrease for others, Chief Justice Ronald Castille said Monday.

The state court system is compiling a statewide master list of prospective jurors based on voting records from the Department of State, tax records from the Department of Revenue, motor-vehicle data from the Department of Transportation and welfare records from the Department of Public Welfare under a state law signed last year.

Sub-lists for individual counties will be provided upon request starting in October or November.

"If you vote, pay taxes, drive or receive welfare or food stamps, your name will be on that list," Castille told a Pennsylvania Press Club luncheon at a Harrisburg hotel.

Currently, counties use different public records to identify residents eligible for jury duty, including voter-registration and driver's license lists. But those exclude people who do not vote or drive, often resulting in jury pools with a racial and gender makeup that does not reflect the county's population.

Health officials yesterday confirmed three more cases of New Jersey residents, two of them children, infected with salmonella linked to tainted tomatoes. The new cases - all involving people who got sick between May 23 and June 3 - bring the state's total to four, including two women in Camden County.

Pennsylvania last week reported five cases, including one each in Bucks and Montgomery Counties, linked to the outbreak that has now sickened more than 600 people nationwide. Officials in Harrisburg could provide no details about the patients' conditions.

In an attempt to avoid a repeat of last year's wave of tainted-toy recalls, lawmakers in eight states have imposed restrictions on potentially toxic substances in children's products such as lead, cadmium and phthalates. Phthalates, chemicals used to make plastics, have been linked to reproductive problems.

Children's product manufacturers such as Hasbro and Mattel and toy retailers such as Toys R Us are echoing Tucker's sentiments. They argue that having different state regulations on children's products will keep safe toys off the market.

Platt was required to bear part of the cost of the recall. In addition, Platt was sued in a civil class action which it paid over $1 million to settle. During discovery in the class action, Platt, in 2001, obtained records showing that UL had been aware of defects in the heaters since 1989, but had not taken action to remove the UL certification. In 2003, Platt Sued UL alleging that UL negligently misrepresented that the heaters were safe, and fraudulently concealed information that would have alerted Platt to the defective condition. The District Court (N.D. Calif.) dismissed the negligent misrepresentation claim as time barred, and granted UL?s motion for judgment on the pleadings on the fraudulent concealment claim. Platt appealed.

Under California law, there is a three-year statute of limitations for fraud claims and a two-year limit for negligent misrepresentation. A claim accrues when all of the elements are present and the aggrieved party has discovered it or had reason to discover it (?inquiry notice?). In the instant case, Platt became aware of a problem when the recall was instituted in 1999. The Court of Appeals held that at that point Platt was on inquiry notice of its negligent misrepresentation claim. The limitation for the claim expired in 2001. The appellate court agreed that this claim was time barred.

Similarly, the Court reasoned that once Platt became aware that the heaters were defective, it was on notice that UL?s certification of the heaters was factually false. It was at that time in 1999 that Platt first had a basis to question the validity of UL?s representations about safety. Platt?s argument that the running of the statute was tolled by UL?s fraudulent concealment was rejected?Platt knew enough to have asserted the claim in a timely manner. Platt filed its fraudulent concealment claim well past the three year statute of limitations; accordingly, this claim was also barred.

Lastly, Platt argued that the District Court had abused its discretion when it denied Platt leave to amend its complaint. Platt asserted that it could amend its complaint to reflect that it had received information in 2001 during discovery in the class action that UL had intentionally concealed that the heaters were unsafe. The appellate court however stated that amending the complaint would be futile because the claims accrued in 1999, before discovery in the class action.

The judgment of the District Court dismissing Platt?s claims was affirmed.

http://www.thedailyreview.com/site/news.cfm?newsid=19814893&BRD=2276&PAG=461&dept_id=465049&rfi=6

http://www.youtube.com/watch?v=etYBATGDtU4&eurl=http://www.crooksandliars.com/2008/06/20/insurance-jive-do-you-speak-insurance/

Do you "speak insurance"?  We do.

The Supreme Court issued its 6-to-3 ruling in favor of Wanda Glenn, an Ohio woman who worked for 14 years as a supervisor in the women?s department of a Sears store. She suffered from heart disease and took a leave of absence in 2000, providing extensive documentation from her doctor that she could not return to work.

Sears offered employees long-term disability insurance as a benefit, but the plan administrator, MetLife, said Ms. Glenn did not qualify. She sued, and the trial court rejected her complaint because she had not shown that MetLife behaved arbitrarily.

But the Appellate Court for the Sixth Circuit found in Ms. Glenn?s favor, saying that MetLife had acted under a conflict of interests. The Supreme Court?s affirmed that ruling, and Ms. Glenn will receive her benefits.

Until now, employees who felt wrongly deprived of benefits could expect little help in court unless they could show that their plan administrators had behaved in an arbitrary, capricious or unprincipled way.

Justice Stephen G. Breyer, writing for the majority, eased that requirement, but stopped well short of setting out specific new rules for when and how employees could challenge adverse benefits decisions.

Pennsylvania has reported its first cases of salmonella linked to tainted tomatoes, bringing to 30 the number of states - plus the District of Columbia - that have reported sick residents.

Federal health officials said yesterday that they had learned of 106 more cases nationwide, putting the outbreak's toll at 383 and counting. At least 48 people have been hospitalized.

"We do not think the outbreak is over," said Robert Tauxe of the Centers for Disease Control and Prevention.

In Pennsylvania, four people were sickened in late May in Bucks, Butler, Lancaster and Warren Counties, said Stacy Kriedeman, spokeswoman for the state Department of Health. Officials believe two of those cases involved exposure outside Pennsylvania, she said.

Patients hoping to get into nursing homes increasingly are signing away their rights to sue over poor care.

That's a problem, say lawmakers who are pushing legislation to make such agreements unenforceable.

The nursing homes argue that arbitration arrangements to which many families agree actually lead to dispute resolutions that are fairer than court cases. But legislators, supported by consumer-advocacy groups and trial lawyers, say families should not be giving away their ability to hold the homes accountable for poor care.

A Senate committee will hear today from the family of William Kurth, who fractured his hip and leg and contracted numerous pressure ulcers during his final months of life in a Wisconsin nursing home. When his family attempted to sue for negligence, a judge dismissed the case because Kurth's wife had agreed, as part of her husband's admission, to have all complaints go through an arbitrator.

The Senate panel, which is investigating the growing use of binding arbitration by nursing homes, says more than 100 lawsuits have been filed in the last five years challenging such agreements.

Arbitrators take into account federal, state and county laws when resolving legal disputes. Often, the parties are free to negotiate some of the ground rules for their case. The process has the advantage of being faster and less expensive for both parties. It also is confidential.

Few families are even thinking about the possibility that they might want to go to court when they admit their loved ones to nursing homes.

Kurth's wife, Elaine, was under extreme duress and on medication when she signed the papers that allowed her husband, a stroke victim, to stay at the nursing home, the family's attorney said.

Family members who will appear before Congress say the World War II veteran died at age 84 from infections that occurred because excrement and urine were not cleansed from his bedsores for days at a time. David Kurth of Burlington, Wis., says arbitration has become a shield for large corporations to hide behind and decrease the quality of care.

"It is economically more profitable to let people like my father suffer than to provide proper care," Kurth said in written testimony prepared in advance. "And now that our family is trying to hold the nursing-home corporation accountable for its actions, Kindred Care is trying to bury our case by forcing us into a mandatory, secret, and binding-arbitration process that they chose."

To see the full report on this case go to VerdictSearch.com

To see the full report, go to VerdictSearch.com

The court finds that Sackett II does not apply to a single car policy which is what the Supreme Court says in footnote 5 of Sackett II.  The Court also notes that under Sackett II "the degree that coverage under an after-acquired vehicle provision continues in effect throughout the existing period.  Once that policy period comes to an end, the insurer must obtain a new waiver if an additional vehicle was added during that period."  The fact is that when the single vehicle policy became a multiple vehicle policy the insured was not supposed to be given a chance to "purchase" intra-policy stacking and it did not get a chance to do so.  Thus, the 3 car policy provides stacking.

Motorcycle head injuries have spiked significantly since the state repealed its law requiring riders to wear helmets, a new study released yesterday found.

The study, conducted by the University of Pittsburgh Medical Center, showed a 32 percent increase in motorcycle-related head-injury deaths and a 42 percent increase in head-injury hospitalizations in the two years following the law's repeal in 2003.

Twenty states - including New Jersey, New York, Maryland and West Virginia - have laws requiring all riders to wear helmets.

But in Pennsylvania, only motorcyclists under 21 and riders with fewer than two years' experience who have not taken a safety course are required to wear helmets.

The average cost to treat a head injury in Pennsylvania is $88,000, according to Clare Collins, a spokeswoman for the University of Pittsburgh's School of Public Health.

Kristen Mertz, the study's lead author, said researchers looked at both head injuries and other types of injuries.

"The relatively large increase in head-injury deaths and hospitalizations after the repeal suggests that the law was protecting riders," she said.

Still, motorcycle activists argue they do not need the government to tell them how to ride.

"The government has a responsibility to individuals, and I think they are overstepping their bounds" when they want to start getting involved in helmet laws, said Charles Umbenhauer, lobbyist for Pennsylvania ABATE, a motorcyclist organization that opposes helmet laws.

In a statement issued yesterday, ABATE called the helmet debate an "endless obsession to market one single item of riding gear as the 'solution' to motorcycle deaths and injuries."

Check it out here.

See the full story at Daily report (free registration required).

Ruiz v. Loews Miami Beach Hotel Operating Co. Inc.

Claborn v. Fincher

What caught my eye is the section on back pain.  You can find it here.  Probably the most common injury that we face in our personal injury and workers' compensation cases involve the spine.  Therefore, I'm always reading articles and journals on the most updated treatments and studies on the spine and traumatic back spinal injuries in particular.  The following passage really stood out for me.

The effectiveness of virtually every pharmaceutical or surgical remedy, however, has been questioned. And for all the money sufferers spend on doctor visits, hospital stays, procedures and drugs, backs are not improving. The Journal of the American Medical Association reported that spending on back treatments jumped 65 percent to nearly $86 billion from 1997 to 2005, after adjusting for inflation. But during the same period, the proportion of people with reduced function because of spine problems increased, even after controlling for an aging population.

The exact cause of back pain is never found in 85 percent of patients, said Dr. Dennis C. Turk, professor of anesthesiology and pain research at the University of Washington and a past president of the American Pain Society. Even magnetic resonance imaging seldom sheds light; in many studies the scans have picked up spinal abnormalities in many people who have never reported back pain.

While the quest for a safe and effective pain pill continues, Americans undergo more than 300,000 spinal fusion surgeries a year, at an average cost of $59,000 each, according to the National Center for Health Statistics. Almost as many undergo laminectomies or diskectomies to remove damaged vertebrae and disks.

For some, back surgery can be life-changing, eliminating pain and disability. But for others, it can have serious consequences. One study found that 11.6 percent of patients in the 78 spinal surgeries that were analyzed developed infections and other complications.

Here's an article from the National Institute of Health on alternative remedies for low back pain (LBP).

Here's an article from Back.com demonstrating, with pictures, exercises and stretching maneuvers that will help with back pain as well as prevent it.

Last, here's an article from a orthopedic surgeon answering questions about his own experience with back pain and how he's dealt with it over the years without surgery.  The following caught my eye from the interview:

Q. What kind of patients find their way to a specialist like you?

A. Usually they're at the end of a long road. They may have gone to their local primary care doctor, a physical therapist, another surgeon, various specialists. They may have had surgery, and it hasn't worked. We, the health care system, make it complicated. When your back hurts, it's bad. It can take your breath away and make you totally immobile, and it's scary. In many cases, these are people who've been so taken aback by it. They are seriously looking for help, and they don't want to experience the pain again. And that's understandable, having had the problem myself.

Usually, 95 to 98 percent of the time, it will get better by itself without any intervention. But that's not the American way. We've built an incredible medical structure. People think, "I shouldn't have to suffer for one day -- there must be a pill or surgery that can help me." I agree with how they feel, but certainly there's over a 90 percent chance most people will get better with no intervention. That's an important message. People will say, "Well, what am I supposed to do when I can't walk or go to work?" Well, having surgery is going to keep you out of work. For the common cold, do you expect to see a doctor every time or expect surgery to make you better? Most people know it will take a week to 10 days to feel better.

Why don't we have that same approach to backaches? Stay active. Take aspirin or other over-the-counter drugs.

On Friday June 6, 2008 the District Court for the Middle District of Pennsylvania found in favor of the insurance company in a sign down case in The Standard Fire Insurance Company v. Poslusney.  In this case the insureds executed a sign down in 1990 from 100K in BI splits limits to 50K in UM and UIM split coverage nonstacked.  The forms were with AEtna.  Then, in 1994 they increased their liability to $305K with The Standard Fire Insurance Company and no new sign downs were executed.  They were injured in a car accident in 2004 and made bodily injury claims.

First, the District Court holds that their was no need for a new sign down in 1994 because the Pennsylvania Supreme Court opinion on Blood v. Old Guard Ins. Co., 934 A.2d 1218 (Pa. 2007) applies to an increase of liability as opposed to a decrease of liability as in Blood, as long as their is a sign down executed.  Second, the court holds that the difference in the 2 companies AEtna v. Standard does not require a new sign down because they are under the same set of inter-related companies of AEtna, Travelers and Standard.  The court also finds that some other changes do not make a new policy in 1994 but importantly does not discuss the effect of the legislature enactment of 40 P.S. Section 991.2001.  In Frankiewicz v. Motorists in 2006 the trial court in Erie County held that similar changes to a policy created a new policy and required a new rejection of stacking form.

San Jose, CA (PRWEB) June 8, 2008 -- A Federal Jury returned a verdict late Friday afternoon in the amount of $6,221,000.00 against TASER International Inc., for the wrongful death of a 40-year-old Salinas, California, man, who died following repeated shocks from three TASER electronic control devices ("ECDs").
    
The jury of five women and two men found that TASER International knew or should have known that its M26 model ECD was dangerous because prolonged exposures to the device pose a substantial risk of cardiac arrest to persons against whom the device is deployed. The jury also found that TASER International failed to adequately warn purchasers of its device of the risks associated with its use. It awarded the parents of Robert Heston $1,000,000 in compensatory damages and $5,000,000.00 in punitive damages. The jury also awarded Heston's estate $21,000.00 in compensatory damages and another $200,000.00 in punitive damages. However, it also found Robert Heston 85% comparatively negligent for the incident which ultimately resulted in his death. Only the compensatory damage award will be reduced by his percentage of comparative negligence.
    
On February 19, 2005, Robert C. Heston began acting erratically inside his family's Salinas, California home. Believing his son might be under the influence of drugs, Heston's father called the police reporting his son's bizarre behavior and asked them for help in removing his son from the home. Officers from the Salinas Police Department responded to the Heston home and confronted Mr. Heston. Three police officers used their TASER ECDs repeatedly subjecting Mr. Heston to nearly 75 seconds of continuous TASER discharges as other officers attempted to handcuff Heston on the living room floor. While being subjected to the TASER discharges, Heston suffered a cardiac arrest causing irreversible brain damage. He was removed from life support the following day and died shortly thereafter.
    
In their lawsuit, Heston v. City of Salinas, et al., N.D. Cal. Case No. C 05-03658 JW, Heston's parents alleged that TASER ECDs are unreasonably dangerous and defective for use on human beings because they are sold without adequate testing and without sufficient warning about the effect of multiple shocks for extended durations, particularly on people who are under the influence of drugs. They further claimed that the weapon, when used repeatedly, causes cardiac arrests and unnecessary deaths.

A jury awarded $807,479 to a teenager who sustained a degloving injury in a rollover crash. Michael Buonaiuto Jr., then 15, was a passenger in his sister's car when he was struck by an employee of Aqualogic Pools & Innovative Pool Plastering. The defense admitted liability, but argued that he has recovered from his injuries. Michael underwent several surgeries. He claimed that he still experiences numbness in his thumb, limited flexation of his wrist when his fingers are closed and limited motor skills. He's still able to play guitar and sports, but at a diminished capacity.

Buonaiuto v. Stroud

A Manhattan building owner and its managing agents agreed to pay a total of $2 million to a tenant who was scalded when her shower's hot-water knob broke in her hand. The injured woman, Ana Feliz, 83 at the time of the July 2006 incident, claimed that the building's managers were aware that the knob was loose, but that they neglected to perform the repair. As a result of the accident, Feliz sustained first- and second-degree burns of more than 10 percent of her body. The defendants contended that the knob had been replaced some 15 months prior to the incident and that Feliz had not reported any further problems. With a trial pending, the parties proceeded to mediation, where a settlement was struck.

Feliz v. Property Resources Corp

The maker of a dough machine that severely injured a baker's arm and hand agreed to pay $400,000. Roberto Torres was operating an automatic dough-dividing machine at Lucca's Bakery when it seized his right arm and broke bones from his elbow to his hand. His attorney argued failure to warn and failure to provide proper safeguards. Oshiriki claimed that Torres ignored a warning label advising users to keep hands and feet clear. Torres underwent several surgeries to repair his arm and hand. He also sued the bakery and the machine's distributor, but they were granted summary judgment.

Torres v. Lucca's Bakery

An ironworker whose ankle was crushed by a powerlift after he fell on uneven ground at a brickyard work site recovered $810,315. Roger K. Hepner blamed his fall on "junk brick," which is old, culled brick that's used to cover the ground at a construction site. The plaintiff's construction expert argued that junk brick created an unsafe condition. It's standard for a work site to have gravel because junk brick causes an uneven surface. Defense counsel argued that once Hepner fell, the operator of the lift should have been carefully watching the area and not have run over the Hepner's foot.

A jury has awarded more than $4 million to a man who lost a leg in an accident while doing volunteer work at his Northampton County church.

Jay Benfield was installing telephone wires at St. John's United Church of Christ in Nazareth when a stack of drywall fell on him on Dec. 26, 2000. He was trapped overnight until workers found him the next day.

His left leg had to be amputated.

The jury deliberated about six hours last Thursday and Friday before announcing the verdict.

Jurors found that one contractor was 70 percent responsible for the accident, another contractor was 20 percent responsible and that Benfield was 10 percent responsible.

***The following is a statement from one of the plaintiff's attorneys, Mark K. Altemose, Esquire, of COHEN & FEELEY of Bethlehem, Pa.:

"My partner, Kelly Rambo, and I would like to thank all of you who expressed congratulations to us on our verdict. It means a great deal to both of us. We truly believe that justice prevailed in the case. Our client is a good man who was willing, from the very beginning--as I told the jury in my opening statement and again in closing--, to accept some responsibility for the accident. The Defendant Construction Manager was being completely unreasonable in denying any liability. The Specifications for the project incorporated a manufacturers' standard that required that drywall be stacked flat. Our experts testified that the purpose of the standard was to prevent this exact type of accident. Nevertheless, the Defendant maintained that stacking it on edge was still safe and that our client was the sole cause of the accident. Fortunately, the jury agreed with our position. Furthermore, the damages awarded were fair and reasonable by any standard of measurement. The jury and our client really deserve the credit.

Hopefully, the Defendant and other contractors who insist on stacking drywall on edge on construction sites will learn from this case so that no other person will endure the needless suffering that our client and his family have endured since this accident and will endure for the remainder of their lives. If so, then this case will be a victory not only for our client, but for PAAJ and all organizations with a similar mission to protect the public at large from needless harm.

According to the American Association for Justice Senior Vice President of Public Affairs Linda Lipsen  "From tires that are defective to cribs that collapse on sleeping babies, secrecy agreements have been used to keep safety information away from people. Stopping secrecy in our civil justice system is necessary to ensure that defective products do not injure or kill more people."

Many of you know and have worked with Carla, C&C Law?s Paralegal Extraordinaire.  You?ve met Carla to discuss the basis facts of you case, you?ve called Carla to update her on you medical status and you?ve spoken to Carla when Jim is out of the office.

Paralegals are more that just legal assistants?through formal education , training and experience, paralegals have knowledge and expertise regarding the legal system and substantive and procedural law which qualify them to do work of a legal nature under the supervision of an attorney. 

Carla has been in the legal field for over thirty years and earned her Paralegal Degree from Penn State University fifteen years ago.  Carla made the switch from legal assistant to Paralegal because ?the additional formal education added to my knowledge and experience.  I consider myself one of the lucky ?paralegals?.  I have the pleasure of working for two attorneys who respect and use my knowledge and education as a paralegal and not as a ?glorified secretary?.

Carla enjoys being a Paralegal because ?everyday on the job brings something different.?

Carla describes her job as ?being there to help your clients when they need it most.  Most people need attorneys when they are facing some of the most difficult situations in their lives.?

While Paralegals work hand in hand with attorneys, it is important to understand that Paralegals cannot give legal advice.  Legal advice may only be relied upon if given by an attorney.

A woman who has an abortion cannot be fired for doing so because the federal Pregnancy Discrimination Act also protects the decision to terminate a pregnancy, the 3rd U.S. Circuit Court of Appeals has ruled in a case of first impression.

The decision by a unanimous three-judge panel in Doe v. CARS Protection Plus Inc. revives a suit brought by a woman who claims she opted to have an abortion after tests showed that her baby had severe deformities and that she was fired three days later -- the day she attended the funeral for the baby.

In the lower court, U.S. District Judge Maurice B. Cohill Jr. granted summary judgment for the defendant, finding that the plaintiff -- who is referred to in court papers only as "Jane Doe" -- failed to show that her firing was connected to her abortion decision.

The 3rd Circuit disagreed, finding that Doe's boss remarked that "she didn't want to take responsibility," and that Cohill erred in labeling it a "stray remark" because a jury could infer from that statement that Doe's abortion was a factor in the decision to fire her.

Cohill also found that Doe could not show that her employer's stated reason for firing her was a "pretext" for discrimination.

A lawyer for CARS contended that Doe had "abandoned" her job, because she failed to notify the company on a daily basis of her intention to take sick or vacation leave.

But Doe's lawyer, Gary M. Davis of Pittsburgh, insisted that his client's husband had telephoned on a Friday, the day of the abortion, he notified the company that his wife would be taking one more sick day and would use vacation time to take off the following week.

The Pennsylvania Supreme Court ruled Thursday that payday loans that cost borrowers a $150 monthly fee plus 6 percent interest violate state consumer law.

The high court upheld a Commonwealth Court ruling last year that fees charged by Advance America Cash Advance Centers exceeded limits of the state's Consumer Discount Company Act.

The state Banking Department sued Advance America over its "monthly participation fee" for their $500 lines of credit, calling them illegal and usurious.

Advance America spokesman Jamie Fulmer said Thursday he was not familiar with the decision and could not comment. The Spartanburg, S.C.-based company announced in December it was shutting down its Pennsylvania operations because of the Commonwealth Court decision.

"When you're not in a position to generate any revenue, you can't cover your cost," he said. All of the company's Pennsylvania stores have been closed, he said.

Advance America calls itself the nation's leading payday advance company, with more than 2,800 centers.

Lanier says the 10-page 14th Court of Appeals opinion, written by Chief Justice Adele Hedges, is "cursory" and "seems to construe the evidence in favor of the defendant and leaves out all of the evidence that supports the verdict."

"I'm upset, and I'll appeal it," Lanier says.

In the opinion, the three-justice panel reversed the $26.1 million judgment in Carol Ernst v. Merck & Co. Inc. and rendered judgment that Carol Ernst, whose 59-year-old husband died in 2001 after taking Vioxx for about nine months, should take nothing. The judgment is smaller than the verdict because of statutory caps on punitive damages.

The panel found the evidence to be legally insufficient on the issue of causation.

Appeals courts in New Jersey and Texas on Thursday scrapped verdicts against drug maker Merck & Co. Inc. stemming from some of the earliest trials involving its once popular painkiller Vioxx.

A Texas court reversed a $26 million verdict against the drug maker stemming from the first trial. The court found no evidence that Robert Ernst suffered a fatal heart problem from a blood clot triggered by Vioxx. He had been taking the now-withdrawn drug for eight months before being stricken in May 2001.

His widow had won a $253 million verdict against New Jersey-based Merck in 2005, but Texas punitive damage caps later cut that to about $26 million.

Also Thursday, a New Jersey appeals court voided $9 million of the $13.9 million awarded to John McDarby in 2006 by a jury in Atlantic City.

The panel found that New Jersey's Product Liability Act was pre-empted by the federal Food Drug and Cosmetic Act. McDarby survived his 2004 heart attack.

An Arkansas woman has filed a federal lawsuit accusing a Connecticut company of making plastic baby bottles with a dangerous chemical linked to serious health problems.

The lawsuit by Ashley Campbell against Playtex Products Inc. of Westport is the latest challenge involving the industrial chemical bisphenol A. The lawsuit seeks nationwide class action status to represent what it says are thousands of people who bought plastic bottles containing the chemical from Playtex or other companies.

Canada said last month the chemical, found in hard plastic water bottles, DVDs, CDs and hundreds of other common items, is potentially harmful and may ban its use in baby bottles. A growing number of parents are turning to glass bottles amid the concerns over bisphenol A.

The U.S. government's National Toxicology Program said last month that there is "some concern" about BPA from experiments on rats that linked the chemical to changes in behavior and the brain, early puberty and possibly precancerous changes in the prostate and breast. While such animal studies only provide "limited evidence" of risk, the draft report said a possible effect on humans "cannot be dismissed."

With more than 6 million pounds produced in the United States each year, bisphenol A is found in dental sealants, baby bottles, the liners of food cans, CDs and DVDs, eyeglasses and hundreds of household goods.

In this case, the plaintiff, while driving his regular vehicle, was hit by a dirt bike on a public road.  The defendant dirt bike driver was uninsured.  The plaintiff's insurance company denied uninsurance benefits under the plaintiff's vehicle's policy.  The Court held this denial was illegal.

Researchers tracked kids from Cincinnati, Ohio, from before birth through adulthood and found that early exposure to lead resulted in a loss of brain matter of over 1 percent on average, particularly in the areas of the brain responsible for controlling impulses, regulating emotions, and anticipating consequences. Higher blood lead levels were also found to be strongly correlated with more arrests in adulthood, especially for violent behavior.

Lead poisoning has long been associated with lower IQs and behavioral problems, but the two new studies are the first to follow lead-exposed kids from birth to adulthood and establish a direct link between lead poisoning, brain size, and higher arrest rates. "Although we've made great strides in reducing lead exposure, our findings send a clear message that further reduction of childhood lead exposure may be an important and achievable way to reduce violent crime," said Kim Dietrich of the University of Cincinnati.

Read the entire decision by the Court here.

Settlement agreements and releases in personal injury cases are increasingly containing confidentiality provisions that may potentially result in adverse tax consequences to the unwary.

The little known tax court decision of Amos v. Commissioner, T.C. Memo 2003-329 (December 1, 2003), is a cautionary tale for Plaintiff's counsel. The relevant facts of the Amos case are condensed as follows:

-    Professional athlete, Dennis Rodman, kicked a photographer in the groin upon  falling out of bounds during an NBA game.

-    The photographer commenced a lawsuit, which eventually settled for the sum of $200,000.00.

-    A settlement agreement was executed between the parties which contained a confidentiality clause.

-    The photographer treated the entire amount of the settlement as compensation for a personal physical injury under IRC Sec. 104(a)(2) and excluded same as income.

-    Possibly as a result of the publicity of the incident, the photographer's income tax return was audited.  The IRS sought to treat the entire sum of $200,000.00 as taxable compensation, reasoning that the settlement amount was motivated by a desire for confidentiality, as opposed to compensation for a personal physical injury.

The Tax Court analyzed the facts as follows:

-    A taxpayer has the burden of proving that damages are on account of personal physical injuries or sickness, under IRC Sec. 104(a)(2), citing Commissioner v Schleir, 515 U.S. 323, 328 (1995), and United States v. Burke, 504 U.S. 229, 248 (1992).

-    "The nature of the claim forming the basis for the settlement controls whether such damages are excludable under IRC Sec. 104 (a)(2)." Burke, supra, 504 U.S. at 237 [emphasis added].

-    "The intent of the payor is critical" and "the character of the settlement payment hinges ultimately on the dominant reason of the payor in making the payment." Knuckles v. Commissioner, 349 F.2d 610, 613 (10^th Cir. 1995).

The Court's decision was to treat 60% of the damages as compensation for the photographer's physical injuries and 40% as payment for confidentiality.  Thus, 40% of the damages were taxable. The impact of the ruling was an acknowledgment that despite the dominant reason Mr. Rodman paid the photographer was to compensate him for his physical injuries, the court still held that a portion of the award represented taxable damages. The holding in Amos provides justification for the IRS to treat all personal injury damage awards as part taxable and part non-taxable if the settlement agreement contains a confidentiality provision.

Therefore, counsel must be cautious during settlement negotiations and insist on striking such confidentiality provisions from personal injury settlements that fall within the purview of IRC Sec. 104(a)(2). If confidentiality is non-negotiable, any such clause should be drafted so as to contain express language that confidentiality is mutually beneficial to both parties and that no consideration is being paid or intended for that purpose.

Also be sure to strike the phase "in settlement of a doubtful and dubious claim" which is frequently inserted into settlement agreements. In the worst case scenario, the settlement agreement and/or release needs to be clear as to the percentage of the total settlement that is being allocated to confidentiality and the percentage allocated as compensation for personal physical injury. It could thus be argued that additional consideration must be paid to offset any such potential tax implications for such apportionment.

Here is a .pdf of the Amos case if you want to review the specific language of the tax court.

A Philadelphia jury awarded a $20.5 million verdict Friday to the parents of an 18-year-old college student who allegedly died from a liposuction procedure gone wrong.

Of the $20.5 million award, $15 million was in punitive damages.

The jury returned the verdict seven years to the day of the elective liposuction for Amy Fledderman, 18, sought for her chin, abdomen and flanks with plastic surgeon Dr. Richard P. Glunk on May 23, 2001, according to court papers.

Amy Fledderman's parents, Daniel H. and Colleen M. Fledderman, sobbed as the 12-member jury returned a unanimous verdict against Glunk and nurse anesthetist Edward DeStefano late Friday morning.

In the Fledderman v. Glunk wrongful death and survival action, the jury awarded $15 million in punitive damages; $3.5 million under the Survival Act; $2 million for Glunk allegedly negligently inflicting emotional distress on Colleen Fledderman; $20,000 under the Wrongful Death Act; and $5,000 for Glunk's alleged failure to obtain Amy Fledderman's informed consent.

Plaintiffs attorney Slade H. McLaughlin of The Beasley Firm said in an e-mail that the $15 million in punitive damages and $5.525 million in compensatory damages is within the 9-to-1 punitive damages cap ratio required by the U.S Supreme Court decision in Campbell v. State Farm. He also noted that the wrongful death damages are almost exactly equal to Fledderman's funeral costs, and the informed-consent damages were the costs of her surgery.

On May 14, 2008 the trial court in Lackawanna County granted the Motion for Summary Judgment of Donegal Mutual Insurance Company in Reeser v. Donegal.  In Reeser the insureds injured were employees of the employer who insured the vehicle.  There was a 4 car policy that had only 35K UM and UIM coverage and no stacking.  However, the company could not produce the forms requesting lower limits or rejecting stacking so the court held as a matter of law that there was 500K in UM and UIM coverage with stacking. 

However, the trial court also held that since there was no policy language entitling a class two insured to stack underinsured motorist coverage, that only a class one insured could stack.  In this case, only the individual employer and those family members who resided with the employer could stack as class one insureds but the employees who were injured as occupants of the insured vehicles could not.  The insureds attempted to argue that since Section 1738 does not distinguish between classes that there was no longer a distinction between class one and class two insureds.  The trial court relies upon Section 1702 of the MVFRL and the line of cases from the 1980s starting with Utica Mutual to hold that there is still a class one and class two distinction, absent a policy provision.

This is a very technical case invovling very specific facts and insurance policy language, or lack thereof.  However, it is ultimate proof that an attorney must look at every angle in determining the amounts of insurance coverage, etc.  Leave no stone unturned.

?Are we willing to allow every institution to dictate that in order to receive their services we must forfeit our right of access to the courts if we are harmed by the transaction? BEING FORCED to choose between an open door to your doctor's office and preserving your constitutional rights is no choice at all. Both our federal and state constitutions jealously guard our right to trial by jury because of the fundamental importance this protection provides to all citizens. Permitting health care facilities to demand that patients forfeit their constitutional rights in order to receive medical treatment is bad medicine."

See the entire article here.

Owing to rules that have been or are being rewritten by the Bush administration, any person filing a similar product liability lawsuit could face the same argument, greatly increasing the chances his suit would be lost or dismissed outright.

In articles last week, the Associated Press disclosed that federal agencies are quietly rewriting the language used in regulating consumer products. Before the rewrites, the language included this sentence: ?The final rule is not intended to preempt state tort civil actions,? meaning a company can be sued if its products are claimed to be flawed. After the agencies? rewrites, however, the language says federal preemption questions can indeed arise for a number of reasons. The Quaids? case is an example of how companies can use the new language.

The commissioner's announcement follows the May 15 First District Court of Appeal's opinion denying Allstate's motion for a rehearing and affirming the OIR's action in issuing the January immediate final order. ?I have stayed the suspension of Allstate, and I have accepted its affidavit as evidence that they have completely and unconditionally complied with Florida law and with our requests for documents,? McCarty said. ?I also, though, have made it perfectly clear that failure to cooperate with necessary, ongoing requests from the Office (OIR) will result in an immediate resumption of the suspension.?

Allstate produced hundreds of thousands of pages of documents that OIR staff members have been thoroughly reviewing. Of the more than 825,000 pages mentioned in its affidavit, Allstate produced only 36,000 pages between the Oct. 16 issuance of the subpoenas and the Jan. 17 issuance of the IFO.

From The Towanda Daily Review:

"A fatal crash occurred in Fox Township, Sullivan County, at 2:12 a.m. on Sunday when Christopher Robinson, 25, of Toughkenamon, was driving an ATV east on Picnic Ground Road, according to state police.





Robinson exited a right-hand curve, left the north berm of the road and struck a tree, police stated.

Police stated that Robinson, who was not wearing a helmet, suffered fatal injuries and was pronounced dead at the scene by Wendy Hastings, the Sullivan County coroner."

***This is similar to my rantings of wearing seat belts.  Wearing a helmet while driving an ATV (all terrain vehicle) is such a simple act that might save your life.  Riding ATV's can be very dangerous in and of themselves.  But, some, like the Yamaha Rhino, are actually defectively designed and are dangerous. 

The Yamaha Rhino is excessively prone to roll over during turns even at low speeds because of inherent flaws in its design. Yamaha has been aware for years of serious injuries and deaths of drivers and passengers in rollover accidents, but have yet to modify the Rhino's design to correct for its stability problems.

RIDGEBURY ? An accident in Ridgebury Thursday evening left three men injured, according to Ridgebury Fire Chief Glen Leonard, with two ?severely critical.?

Leonard said one man was airlifted to Robert Packer Hospital while the other two were taken there by Greater Valley EMS. He thought the accident occurred around 6:30 p.m.
The accident occurred where Wolcott Hollow Road and Chapel Road meet. Ridgebury Assistant Chief Kevin Chapman, who was first on the scene, said that by judging from the skid marks the vehicle was heading south on Wolcott Hollow Road. Wolcott Hollow Road makes a sharp turn near a hill, which is where the vehicle skidded off the road on the northbound side and clipped two trees, then turned onto Chapel Road. The vehicle came to a rest on Chapel Road, where Chapman found the vehicle. The vehicle was facing north towards Wolcott Hollow Road, he mentioned.

Two of the men, Chapman said, had been ejected and were injured from ?head to toe.? The third, he added, had gotten out of the vehicle. Chapman told him to sit by the side of the road.

He said all three men had head injuries as they all had blood on their heads. Chapman, who lives nearby, immediately reported that they were serious injuries.

Debris was scattered all over the yard where the two trees stood and included the car?s front bumper, a hat and two shoes."

The insurance company's defense was that another child in the back seat screamed, thus causing the driver to look in the back seat, thus causing the car to veer off the road.

Congratulations to Eric Weitz, Esquire who was the Plaintiff's lawyer in the case.  And also congratulations to the injured boy and his family.  Hopefully, Eric will be able to collect something on this judgement to help take care of the child in the future.

I'll post a link to the story once I find it online.

A Texas appeals court on Wednesday overturned a multimillion-dollar verdict against Merck & Co. in one of the few trials it lost over its withdrawn painkiller Vioxx.

A jury in Rio Grande City, Texas, in April 2006 awarded $32 million to the widow of 71-year-old Leonel Garza, a short-term Vioxx user who died of a heart attack in 2001. That award -- $7 million for compensatory damages and $25 million for punitive damages -- later was cut to about $7.75 million under Texas law limiting damages.

On Wednesday, a three-judge panel of the Texas 4th Court of Appeals overturned the verdict, ruling in favor of Merck. The opinion was signed by Justice Sandee Bryan Marion.

The judges wrote that Garza's family did not prove his brief use of Vioxx caused two blood clots that the family's attorneys argued triggered his heart attack. The judges also concluded the family did not provide sufficient evidence to rule out his longstanding heart disease as the cause of his fatal heart attack.

"Faced with an unfriendly Congress, the Bush administration has found another, quieter way to make it more difficult for consumers to sue businesses over faulty products. It's rewriting the bureaucratic rulebook.  Lawsuit limits have been included in 51 rules proposed or adopted since 2005 by agency bureaucrats governing just about everything Americans use: drugs, cars, railroads, medical devices and food.  Decried by consumer advocates and embraced by industry, the agencies' use of the government's rule-making authority represents the administration's final act in a long-standing drive to shield companies from lawsuits."