Carroll & Carroll, P.C. Blog http://www.weknowinjurylaw.com/blog/ en-us 2009 Carroll & Carroll, P.C., All Rights Reserved, Reproduced with Permission http://www.weknowinjurylaw.com/blog/ Thu, 28 May 2009 17:24:46 EST Carroll & Carroll, P.C. Blog http://www.weknowinjurylaw.com/images/logoprint.gif http://www.weknowinjurylaw.com/blog/ Pennsylvania Car Accident Plaintiff's award of $400,000 Upheld On Appeal Below is the link to the Pennsylvania Superior Court decision from May 1, 2009 in Dolan v. Fissell which deals with an appeal by the Defendant from an arbitration award in favor of the plaintiff for $28,220.

This is a case arising from a car accident and, after the appeal by the Defendant, the Plaintiff filed a stipulation under Rule 1311.1 to proceed by medical reports and limit the award of the jury trial to $25,000. Prior to trial the Defense exam was favorable to the Plaintiff. The Plaintiff withdrew the 1311.1 filing and also presented the defense expert as a Plaintiff expert at the trial.

The jury awarded $434,757.25. The Defendant appealed and the published decision by Judge Klein (joined by Judges Shogun and McEwen P.J.E.) holds that the trial court in Chester County did not commit error in allowing the Plaintiff
to withdraw the stipulation to proceed on medical reports and limit her recovery to $25,000 nor in allowing the expert initially retained by the Defense to testify for the Plaintiff.

http://www.pacourts.us/OpPosting/Superior/out/a04011_09.pdf

Thanks to Attorney Scott Cooper for this information.]]>
http://www.weknowinjurylaw.com/blog/pennsylvania%2Dcar%2Daccident%2Dplaintiffs%2Daward%2Dof%2D400000%2Dupheld%2Don%2Dappeal%2Ecfm http://www.weknowinjurylaw.com/blog/pennsylvania%2Dcar%2Daccident%2Dplaintiffs%2Daward%2Dof%2D400000%2Dupheld%2Don%2Dappeal%2Ecfm james.carroll@cclaw.cc (Blog Author)11667 Wed, 06 May 2009 08:00:00 EST
An unsafe intersection in Athens Township? Here is a link to an article from the Morning Times in Sayre, Pennsylvania.  The article covers the controversy of adding an EMTA "park and ride" parking lot at the intersection of Route 220 and Route 199.

I know this intersection very well.  It is a dangerous intersection given the fact that cars travel very fast either going onto the four lane portion of 220 or coming off of it.

What is being proposed is basically another intersection where vehicles and pull out onto Route 220, creating another hazard at an already dangerous spot in the road.

Here is just a sampling of the automobile accidents that have occurred in that location recently:

"A couple of years ago, that intersection was the scene of an accident involving a bus carrying students from the Athens Area School District. Just last week, an 83-year-old Athens man was sent to the hospital after his vehicle collided with an international beverage truck near that intersection.

In fact, the most recent accident that occurred at the intersection was reported earlier this week — Monday — when two Milan residents were sent to the hospital after a truck pulled out from Route 199 and collided with their vehicle, which was traveling north on Route 220.

The truck was traveling west on Route 199 and had stopped at the stop sign at the Route 220 intersection before pulling onto Route 220 and into the path of the other vehicle, said Athens Township Police."]]>
http://www.weknowinjurylaw.com/blog/an%2Dunsafe%2Dintersection%2Din%2Dathens%2Dtownship%2Ecfm http://www.weknowinjurylaw.com/blog/an%2Dunsafe%2Dintersection%2Din%2Dathens%2Dtownship%2Ecfm james.carroll@cclaw.cc (Blog Author)11560 Mon, 04 May 2009 08:00:00 EST
New York state man recovers $200K for fingers lost to lawn mower A plaintiff recovered $200,000 for injuries that he sustained in an accident involving a lawn mower — even if he was largely to blame. The plaintiff, Mikhail Nisanov, amputated three fingers when a Black & Decker (U.S.) Inc. electric lawn mower activated while he was cleaning the underside of its cutting deck. Nisanov claimed that the mower's power switch was too easily activated and that a safer design would have featured a more fully recessed switch. Black & Decker argued that Nisanov was at fault for ignoring the product's warning that the mower should be unplugged during maintenance. The jury agreed. It awarded $2 million, but the award was sliced to $200,000 because Nisanov was found 90-percent liable for the accident.
To purchase a full report on this case from Verdict Search, click Nisanov v. Black & Decker (U.S.) Inc.
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http://www.weknowinjurylaw.com/blog/new%2Dyork%2Dstate%2Dman%2Drecovers%2D200k%2Dfor%2Dfingers%2Dlost%2Dto%2Dlawn%2Dmower%2Ecfm http://www.weknowinjurylaw.com/blog/new%2Dyork%2Dstate%2Dman%2Drecovers%2D200k%2Dfor%2Dfingers%2Dlost%2Dto%2Dlawn%2Dmower%2Ecfm james.carroll@cclaw.cc (Blog Author)11287 Fri, 24 Apr 2009 08:00:00 EST
Pennsylvania Superior Court Case Quashing Underinsured Motorist Carrier Appeal Here is the now published opinion in Gunn v. The Automobile insurance Company of Hartford where a 3 judge panel of the Pennsylvania Superior Court, in a 2-1 decision, quashed the appeal of an underinsured motorist carrier in a case where the trial court decision by Judge Wettick in Allegheny County allowed an underinsured motorist claim (UIM) and bad faith claim under Section 8371 to proceed simultaneously.

The decision of the majority, written by Judge Allen and joined by P.J. Ford-Elliott, finds that the trial court decision was not an appealable order under Pennsylvania Rule of Appellate Procedure 313. Judge Lally-Green dissents and would find that the decision of the trial court was appealable and would reverse the trial court decision as abusing its discretion.

Of note, the case was originally a memorandum decision and no motion to publish was filed. The court docket indicates that the decision to withdraw the opinion and publish was made "after recommendation" and was thus published sua sponte.

Thanks again to Attorney Scott Cooper for this information.]]>
http://www.weknowinjurylaw.com/blog/pennsylvania%2Dsuperior%2Dcourt%2Dcase%2Dquashing%2Dunderinsured%2Dmotorist%2Dcarrier%2Dappeal%2Ecfm http://www.weknowinjurylaw.com/blog/pennsylvania%2Dsuperior%2Dcourt%2Dcase%2Dquashing%2Dunderinsured%2Dmotorist%2Dcarrier%2Dappeal%2Ecfm james.carroll@cclaw.cc (Blog Author)11028 Fri, 17 Apr 2009 08:00:00 EST
Pa. Superior Court Allows UIM And Bad Faith To Proceed At Same Time On April 6, 2009, in the case of Gunn v. The Automobile Insurance Company of Hartford, a 3 judge panel of the Pennsylvania Superior Court, in a 2-1 decision, affirms the trial court decision by Judge Wettick in Allegheny County to allow an underinsured motorist claim (UIM) and bad faith claim under Section 8371 to proceed simulatenously. 

The decision of the majority (Judges Ford-Elliott and Allen) determines that under the facts and circumstances of the case the trial court decision was not an appealable order under Pennsylvania Rule of Appellate Procedure 313.  Judge Lally-Green dissents and would find that the decision of the trial court was appealable and would reverse the trial court decision as abusing its discrtetion.  Frank Murphy wrote the Amicus for PaAJ and Gunn is represented by PaAJ members Cindy Danel and Ken Nolan.

Thanks to Attorney Scott Cooper for this information. 
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http://www.weknowinjurylaw.com/blog/pa%2Dsuperior%2Dcourt%2Dallows%2Duim%2Dand%2Dbad%2Dfaith%2Dto%2Dproceed%2Dat%2Dsame%2Dtime%2Ecfm http://www.weknowinjurylaw.com/blog/pa%2Dsuperior%2Dcourt%2Dallows%2Duim%2Dand%2Dbad%2Dfaith%2Dto%2Dproceed%2Dat%2Dsame%2Dtime%2Ecfm james.carroll@cclaw.cc (Blog Author)10705 Tue, 07 Apr 2009 08:00:00 EST
New York Times article on biased "Independant" Medical Examiners Recently, The New York Times began putting together a series of articles on the New York State workers’ compensation system.  One of the articles printed in the April 1, 2009, edition was entitled “a world of hurt: exams of injured workers fuel mutual mistrust.”  The article was written by N.R. Kleinfield and can be seen here

The whole gist of the series is the decline and unfairness of the New York workers’ compensation system.  However, this article specifically focuses on the doctors who are used by the insurance companies as so called “independent” medical examiners.  As this article proves, these examiners are nothing at all close to being "independent.”  As one of the doctors indicated in the article, in order to be certified as an examiner in workers’ compensation cases, “basically, if you haven’t murdered anyone and you have a medical license, you get certified.”

Another aspect of the article talks about the significant disparity between the opinions of the treating physicians and the opinions of these insurance doctors or more commonly referred to as IMEs. 

Although this article dealt specifically with the New York State workers’ compensation system, it has been my experience that these insurance company doctors permeate throughout the country.  Actually, here at Carroll & Carroll, P.C., we like to refer to them as Defense Medical Examiners or DMEs. 

Insurance adjusters know which doctors are favorable to them and which doctors are not.  They know it based upon their own experience.  Therefore, the doctors who will write an opinion that is favorable to the insurance company more often than the claimant will get more business.

I know some doctors who have their own private practice and actually see patients but also make over a million dollars a year merely doing insurance company work.  They obviously know who pays the bills.

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http://www.weknowinjurylaw.com/blog/new%2Dyork%2Dtimes%2Darticle%2Don%2Dbiased%2Dindependant%2Dmedical%2Dexaminers%2Ecfm http://www.weknowinjurylaw.com/blog/new%2Dyork%2Dtimes%2Darticle%2Don%2Dbiased%2Dindependant%2Dmedical%2Dexaminers%2Ecfm james.carroll@cclaw.cc (Blog Author)10625 Sat, 04 Apr 2009 08:00:00 EST
People injured in Springfield Township, Bradford County automobile crash I don't normally post about specific automobile accidents and crashes.  However, every once in a while the facts of a specific crash makes think about making a point.

In a recent crash that happened in Springfield Township, Bradford County, two vehicles collided on Springfield Road (State Route 4014).  You can read the entire article from the Towanda Daily Review here.

It is not clear from the article as to who caused the accident; however, it is clear that it was a significant accident.  Just see the picture of one of the vehicles on its roof.  The article indicates that both drivers were seriously injured and taken to the hospital.  What struck me, though, is that Miss Brown had a four (4) year old in the car who was not injured.

I am sure the reason this child had no injuries, even though everyone else involved in the accident had serious injuries, was because of the child safety seat.  The reason that I am blogging about this accident is because you can thank trial lawyers and consumer advocates for the child safety seat laws.  Miss Brown’s child was not injured because of what we do every day.
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http://www.weknowinjurylaw.com/blog/people%2Dinjured%2Din%2Dspringfield%2Dtownship%2Dbradford%2Dcounty%2Dautomobile%2Dcrash%2Ecfm http://www.weknowinjurylaw.com/blog/people%2Dinjured%2Din%2Dspringfield%2Dtownship%2Dbradford%2Dcounty%2Dautomobile%2Dcrash%2Ecfm james.carroll@cclaw.cc (Blog Author)10555 Thu, 02 Apr 2009 08:00:00 EST
Insurance company denials of benefits in Pennsylvania and New York I just read this article from McClatchy on "How Insurers secretly blacklist millions with common ailments."  When you read this article, you'll realize why we need universal health care in the United States of America.

Trying to buy health insurance on your own and have gallstones? You'll automatically be denied coverage. Rheumatoid arthritis? Automatic denial. Severe acne? Probably denied. Do you take metformin, a popular drug for diabetes? Denied. Use the anti-clotting drug Plavix or Seroquel, prescribed for anti-psychotic or sleep problems? Forget about it.   What's more, you can discover that if you lie to an insurer about your medical history and drug use, you will be rejected because data-mining companies sell information to insurers about your health, including detailed usage of prescription drugs.

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http://www.weknowinjurylaw.com/blog/insurance%2Dcompany%2Ddenials%2Dof%2Dbenefits%2Din%2Dpennsylvania%2Dand%2Dnew%2Dyork%2Ecfm http://www.weknowinjurylaw.com/blog/insurance%2Dcompany%2Ddenials%2Dof%2Dbenefits%2Din%2Dpennsylvania%2Dand%2Dnew%2Dyork%2Ecfm james.carroll@cclaw.cc (Blog Author)10407 Mon, 30 Mar 2009 08:00:00 EST
No Work Jobs Pa Work Injury Law blog on a new case from the Pennsylvania Commonwealth Court addressing "No work" jobs being offered to injured employees just to get them back to work.

See the post here.

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http://www.weknowinjurylaw.com/blog/no%2Dwork%2Djobs%2Ecfm http://www.weknowinjurylaw.com/blog/no%2Dwork%2Djobs%2Ecfm james.carroll@cclaw.cc (Blog Author)9840 Wed, 11 Mar 2009 08:00:00 EST
District Court Holds That Estate Underinsured Motorist Claim Barred Due To State Of Maine Law On March 4, 2009 Judge O'Neill in the Eastern District of Pennsylvania granted Allstate Insurance Company's Motion for Summary Judgment in Willett v. Allstate Insurance Company where the Estate of an insured was arguing that a claim for underinsured motorist (UIM) benefits was allowed even though the law in the state of Maine, where the decedent's accident occurred, has a statutory cap on the amount of monies that can be recovered for non-economic damages in a wrongful death action. 
 
David Willett (Willett) was killed in a car accident which occurred in Maine.  At the time of the accident he resided in Pennsylvania with his mother and was insured under her Allstate policy which provided for $100,000 in UIM benefits unstacked.  The third party had a total amount of coverage (liability and umbrella) of $1,250,000.  Pursuant to the laws in Maine the Estate received only the statutory cap of $400,000 for non-economic damages and the total award, with the additional expenses, was $454,249. 

The Estate pursued the UIM claim in Pennsylvania against Allstate and was providing a full credit for the full $1,250,000.  The District Court decision by Judge O'Neill holds that Allstate is not required to make any UIM payment because the application of the statutory cap in Maine precluded the UIM claim.  He finds that the Pennsylvania Supreme Court decision in Cipolla v. Shaposka, 267 A.2d 854 (Pa. 1970) is controlling and on point.  He distinguishes the Willett situation from the Pennsylvania Supreme Court decision in Kmonk-Sullivan v. State Farm Mutual Auto. Ins. Co., 788 A.2d 955 (Pa. 2001) because he writes that the Kmonk case (1) involved Pennsylvania accidents and not one from another state, (2) no party argued another state law was applicable, (3) there was no choice of law issue in Kmonk and (4) the Court in Kmonk did not cite, discuss or overrule Cipolla
 
He holds that the statutory cap under the laws in Maine make the estate NOT "legally entitled" to recover UIM benefits and thus, no UIM monies are to be paid. 

Thanks again to Attorney Scott Cooper for providing this information.
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http://www.weknowinjurylaw.com/blog/district%2Dcourt%2Dholds%2Dthat%2Destate%2Dunderinsured%2Dmotorist%2Dclaim%2Dbarred%2Ddue%2Dto%2Dstate%2Dof%2Dmaine%2Dlaw%2Ecfm http://www.weknowinjurylaw.com/blog/district%2Dcourt%2Dholds%2Dthat%2Destate%2Dunderinsured%2Dmotorist%2Dclaim%2Dbarred%2Ddue%2Dto%2Dstate%2Dof%2Dmaine%2Dlaw%2Ecfm james.carroll@cclaw.cc (Blog Author)9756 Mon, 09 Mar 2009 08:00:00 EST
Eight Powerful Reasons to Hire a Local Attorney From our friends at Zifflaw.com.  They've provided 8 reasons to go local when seeking legal help.  Go to the post here to see the entire list.  But I think the most important two are knowing the local judges and local court systems and rules in order to get things done and get things done as fast as possible.

Just because a lawyer practices in Buffalo or Philadelphia or Scranton does NOT make that lawyer "better" than a local lawyer.  Trust me.  I worked in Harrisburg for many years in a big firm.  Where you practice and what size of firm you come from does not make the lawyer good or bad.

Some people are also worried that a small, local law firm cannot "handle" big cases due to staffing issues or the cost required.  Again, trust me when I tell you that no matter the size of the case, we at Carroll & Carroll, P.C. have unlimited funds if the case calls for it.

Also, with firms like Zifflaw and Carroll & Carroll, P.C., we have lawyers who specialize.  Therefore, we focus on a few types of cases and that's it.  Further, our case loads tend to be smaller, thus allowing us to spend more time with individual files and clients.  There is more of a chance that you'll feel better taken care at a small firm rather than a big one in another city several hours away.

Consider these things when viewing the advertising from out of area lawyers on TV, radio and billboards.

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http://www.weknowinjurylaw.com/blog/eight%2Dpowerful%2Dreasons%2Dto%2Dhire%2Da%2Dlocal%2Dattorney%2Ecfm http://www.weknowinjurylaw.com/blog/eight%2Dpowerful%2Dreasons%2Dto%2Dhire%2Da%2Dlocal%2Dattorney%2Ecfm james.carroll@cclaw.cc (Blog Author)9283 Fri, 20 Feb 2009 08:00:00 EST
CALL YOUR MEMBER OF CONGRESS AND URGE SUPPORT FOR THE ARBITRATION FAIRNESS ACT OF 2009 Congressman Henry “Hank” Johnson is set to introduce the Arbitration Fairness Act of 2009 this week.  Please call your Member of Congress TODAY and ask them to be an original cosponsor of the bill.  The Arbitration Fairness Act would prohibit the enforcement of binding mandatory arbitration clauses in consumer, employment, and franchisee contracts. 

Below is a Dear Colleague letter from Congressman Johnson for your reference and following that is information on mandatory arbitration.

Dear Colleague,

One of our indelible rights is the right of a jury trial.  Guaranteed by the Constitution, this right has been gradually ceded by citizens everyday as they purchase a new cell phone, buy a home, place a loved one in a nursing home, or accept a new job.  Once used as a tool for businesses to solve their disputes, arbitration agreements have found their way into employment, consumer, franchise, and medical contracts.

The Federal Arbitration Act (FAA) was enacted as an alternative to resolve disputes between businesses on equal footing.  Today, these agreements have entered the consumer level.  In order to receive service, businesses have imposed mandatory pre-dispute arbitration agreements on consumers.  Citing it as a cheaper, informal, expedited process, these contracts of adhesion leave consumers, employees, and small businesses at a disadvantage.

Ordinary Americans overwhelmingly do not support mandatory arbitration clauses when they are explained to them.  However, millions of Americans have unknowingly received mandatory arbitration clauses in contracts for a wide range of consumer goods and services.  Oftentimes, they are enforced without a signature, and are announced in hundreds of lines deep in fine print, written in dense legalese, often on the backside of a document or buried in a mailer along with other pieces of advertisements or solicitations.  If and when a dispute does arise, high administrative fees, a lack of a discovery proceeding, and no meaningful judicial review of an arbitrator’s decision amount to a stacked deck against the consumer, making it harder for individuals to prevail. 

Although states have tried to address this problem through their consumer protection laws, the courts have interpreted the Act to trump state laws leaving consumers very little recourse.  This legislation would return the FAA to its original intention and omit consumer, medical, franchise, and employment agreements from these pre-dispute agreements.  Americans are entitled to a trial by jury; pre-dispute mandatory arbitration agreements give only one side the upper hand.

Please become an original cosponsor of this important legislation. 

Sincerely,

Henry “Hank” Johnson
Member of Congress

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http://www.weknowinjurylaw.com/blog/call%2Dyour%2Dmember%2Dof%2Dcongress%2Dand%2Durge%2Dsupport%2Dfor%2Dthe%2Darbitration%2Dfairness%2Dact%2Dof%2D2009%2Ecfm http://www.weknowinjurylaw.com/blog/call%2Dyour%2Dmember%2Dof%2Dcongress%2Dand%2Durge%2Dsupport%2Dfor%2Dthe%2Darbitration%2Dfairness%2Dact%2Dof%2D2009%2Ecfm james.carroll@cclaw.cc (Blog Author)8969 Tue, 10 Feb 2009 08:00:00 EST
Another ATV Death From the Towanda Daily Review:

"TERRY TOWNSHIP – Rescue crews discovered the body of an unidentified man Monday night near the intersection of Vial Hill Road and Johnson Hill Road in Terry Township, the apparent victim of an all-terrain vehicle accident."
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http://www.weknowinjurylaw.com/blog/another%2Datv%2Ddeath%2Ecfm http://www.weknowinjurylaw.com/blog/another%2Datv%2Ddeath%2Ecfm james.carroll@cclaw.cc (Blog Author)8966 Tue, 10 Feb 2009 08:00:00 EST
Bradford County, Pennsylvania has a new website BradfordCountyPa.org
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http://www.weknowinjurylaw.com/blog/bradford%2Dcounty%2Dpennsylvania%2Dhas%2Da%2Dnew%2Dwebsite%2Ecfm http://www.weknowinjurylaw.com/blog/bradford%2Dcounty%2Dpennsylvania%2Dhas%2Da%2Dnew%2Dwebsite%2Ecfm james.carroll@cclaw.cc (Blog Author)8749 Wed, 04 Feb 2009 08:00:00 EST
No conflict of interest between Bradford County, Pennsylvania's new Judge and new District Attorney, despite them cousins Towanda Daily Review:

"Bradford County Court Judge Maureen Beirne can preside over criminal cases that are prosecuted by her first cousin, Bradford County District Attorney Daniel Barrett, according to an opinion issued recently by the president judge of the Bradford County Court of Common Pleas.  The Pennsylvania Code of Judicial Conduct permits a judge to preside over a case in which the judge’s cousin is acting as an attorney, Jeffrey A. Smith, president judge of the Bradford County Court of Common Pleas, wrote in his opinion, which was filed Friday in the Bradford County Prothonotary’s Office."

I don't think they're very close anyway, despite being first cousins.  Actually, I'm distantly related to Judge Beirne, a fact that I'm going to remind her about every time I'm in front of her!
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http://www.weknowinjurylaw.com/blog/no%2Dconflict%2Dof%2Dinterest%2Dbetween%2Dbradford%2Dcounty%2Dpennsylvanias%2Dnew%2Djudge%2Dand%2Dnew%2Ddistrict%2Dattorne%2Ecfm http://www.weknowinjurylaw.com/blog/no%2Dconflict%2Dof%2Dinterest%2Dbetween%2Dbradford%2Dcounty%2Dpennsylvanias%2Dnew%2Djudge%2Dand%2Dnew%2Ddistrict%2Dattorne%2Ecfm james.carroll@cclaw.cc (Blog Author)8745 Wed, 04 Feb 2009 08:00:00 EST
Prison Guard receives settlement in MRSA case COLLEGEVILLE — A borough woman who claimed she contracted a staph infection which caused facial scarring while working as a prison guard at Graterford Prison in 2003 recently settled for $226,000.

According to the claim Snyder filed, she woke on Dec. 30, 2003, to find her face significantly swollen for no apparent reason. After consulting her primary health-care provider, she was referred to another doctor who cut her face to drain the swelling. This treatment, which was administered multiple times on multiple areas of Snyder's face, left her with facial scarring.

Schrom said Snyder has had "probably 40 infections that she's had over the course of time," that resulted in "40 separate outbreaks" on her skin.

Snyder's claim indicates she was diagnosed with MRSA on June 28, 2005 by an open wound specialist.

The infectious disease doctor who treated Snyder stated that there was "no question in my mind that Ms. Snyder acquired this bacterial strain while working at the prison," according to Snyder's claim.

Schrom said the prison initially told his client that they did not believe she had MRSA, rather acne.

To see the full story and photos of the facial scarring, go here.

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http://www.weknowinjurylaw.com/blog/prison%2Dguard%2Dreceives%2Dsettlement%2Din%2Dmrsa%2Dcase%2Ecfm http://www.weknowinjurylaw.com/blog/prison%2Dguard%2Dreceives%2Dsettlement%2Din%2Dmrsa%2Dcase%2Ecfm james.carroll@cclaw.cc (Blog Author)8346 Thu, 22 Jan 2009 08:00:00 EST
NYC to pay $2.75M for softball accident in school gym class The City of New York Department of Education must pay $2.75 million to a woman who sustained severe facial injuries in a softball accident four years ago, while attending one of the city's public schools.

Chelise Navarro, now 20, was struck in the face by a swung bat during softball drills in gym class at the Bronx's Walton High School. She sued the department of education, alleging that her gym teacher was not supervising the drills. The defense cast blame on the girl who swung the bat, contending that the students had been warned not to execute full swings of the bat. It also contended that Navarro assumed the gym-class activity's inherent risk of injury, but the jury found that the department of education was liable for the accident.

To see the full report go to VerdictSearch.com.]]>
http://www.weknowinjurylaw.com/blog/nyc%2Dto%2Dpay%2D275m%2Dfor%2Dsoftball%2Daccident%2Din%2Dschool%2Dgym%2Dclass%2Ecfm http://www.weknowinjurylaw.com/blog/nyc%2Dto%2Dpay%2D275m%2Dfor%2Dsoftball%2Daccident%2Din%2Dschool%2Dgym%2Dclass%2Ecfm james.carroll@cclaw.cc (Blog Author)8343 Thu, 22 Jan 2009 08:00:00 EST
Court Allows Claims For Emotional Distress After Alleged Breach Of Contract To Continue In Amitia v. Nationwide Mut. Ins. Co., No. 3:08cv335 (M.D. Pa. Jan. 15, 2009), Judge Munley from the Middle District of Pennsylvania Denied Nationwide's Motions to Dismiss Claims that allege violations of the Unfair Trade Practices and Consumer Protection Law (UTPCPL) and Breach of Contract in a case arising out of an underinsured motorist claim after a July 3, 2002 car accident. 
 
First, the Nationwide Motion for Dismiss the UTPCPL count is denied because Amitia alleged more than a mere breach of a contractual duty by alleging Nationwide failed to evaluate the claim promptly, objectively and fairly.  Also, Amitia alleges Nationwide conducted an unfair, unreasonable and dilatory investigation.  Therefore, he finds that their have been allegations more than the simple alleged refusal to pay which could warrant recovery under the UTPCPL.
 
Second, he denies a Motion to Dismiss a claim for breach of contract.  Nationwide argued that since the underinsured motorist claim was paid that it could not be responsible for breach of contract.  The opinion notes that the damages sought in the case because of the breach are different than damages for the underinsured motorist benefits.  The claims allege emotional distress because of Nationwide's breach.  Thus, this is not the same as damages for the breach of not paying UIM benefits and the Court finds that "it would be inappropriate at this time to dismiss the breach of contract cause of action as it seeks recovery for emotional distress, which may be recoverable."
 
Thanks to Scott B. Cooper, Esquire for this information.
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http://www.weknowinjurylaw.com/blog/court%2Dallows%2Dclaims%2Dfor%2Demotional%2Ddistress%2Dafter%2Dalleged%2Dbreach%2Dof%2Dcontract%2Dto%2Dcontinue%2Ecfm http://www.weknowinjurylaw.com/blog/court%2Dallows%2Dclaims%2Dfor%2Demotional%2Ddistress%2Dafter%2Dalleged%2Dbreach%2Dof%2Dcontract%2Dto%2Dcontinue%2Ecfm james.carroll@cclaw.cc (Blog Author)8155 Fri, 16 Jan 2009 08:00:00 EST
Pa. Super. Rules Insured Bears Burden To Show Rejection Form Is Forgery

Attached is a copy of the Pennsylvania Superior Court decision today in Toth v. Donegal Companies. This case deals with a rejection of underinsured motorist coverage where the rejection form was signed by the spouse of the first named insured. The trial court held that the form must be signed by the first named insured and, since it was not, the form was void. The Superior Court relies upon Jackson v. Allstate Insurance Co., 441 F.Supp.2d 728 (E.D. Pa. 2006) where the District Court found that the insured failed to prove her signature on a rejection form was a forgery.

The trial court is reversed and the Superior Court holds "where a signature appears on the UIM rejection form purporting to be that of the first named insured, the insurer has complied with the statute resulting in a facially valid rejection form.

The burden would then shift to the insured to prove that his or her signature was affixed to the rejection form without knowledge or authorization." Toth now needs to show that her signature was a forgery, placed there without her knowledge or consent, and that she did not willingly waive UIM coverage or the rejection form remains valid.

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http://www.weknowinjurylaw.com/blog/pa%2Dsuper%2Drules%2Dinsured%2Dbears%2Dburden%2Dto%2Dshow%2Drejection%2Dform%2Dis%2Dforgery%2Ecfm http://www.weknowinjurylaw.com/blog/pa%2Dsuper%2Drules%2Dinsured%2Dbears%2Dburden%2Dto%2Dshow%2Drejection%2Dform%2Dis%2Dforgery%2Ecfm james.carroll@cclaw.cc (Blog Author)8154 Fri, 16 Jan 2009 08:00:00 EST
Truck Driver Rule May Endanger U.S. Motorists The administration of outgoing President George W. Bush is rushing to put several laws into place before Jan. 20 (when the president's term ends). One of these 11th-hour legislative changes threatens the safety of motorists across the U.S., as it may increase the risk of trucking accidents on our highways.

Unsafe Guidelines May Put Drivers at Risk
In a last-minute industry-favoring move by the Bush administration, the U.S. Department of Transportation's Federal Motor Carrier Safety Administration (FMCSA) has released a "rule" that may increase the risk of trucking accidents. The new rule allows truck drivers to:

  • Work 11 consecutive hours a day
  • Work up to 14 hours per shift
  • Be behind the wheel of 80,000-pound trucks for as much as 77 hours per week

This rule had already been in place, temporarily, and has been challenged numerous times based on extensive research that shows how unsafe these standards are.

To see the full post from PersonalInjuryLawyers.com, go here.

The major safety issue with these rule changes is the fatigue issue.  It is inherently unsafe to have these long haul truck drivers behind the wheel for so many hours during one week's time.

To see more information about tractor trailer accidents, go here and here.

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http://www.weknowinjurylaw.com/blog/truck%2Ddriver%2Drule%2Dmay%2Dendanger%2Dus%2Dmotorists%2Ecfm http://www.weknowinjurylaw.com/blog/truck%2Ddriver%2Drule%2Dmay%2Dendanger%2Dus%2Dmotorists%2Ecfm james.carroll@cclaw.cc (Blog Author)7724 Fri, 02 Jan 2009 08:00:00 EST
New blog post at the Pa Injury Law blog about the effect Bush had on OSHA here.]]> http://www.weknowinjurylaw.com/blog/new%2Dblog%2Dpost%2Dat%2Dthe%2Dpa%2Dinjury%2Dlaw%2Dblog%2Dabout%2Dthe%2Deffect%2Dbush%2Dhad%2Don%2Dosha%2Ecfm http://www.weknowinjurylaw.com/blog/new%2Dblog%2Dpost%2Dat%2Dthe%2Dpa%2Dinjury%2Dlaw%2Dblog%2Dabout%2Dthe%2Deffect%2Dbush%2Dhad%2Don%2Dosha%2Ecfm james.carroll@cclaw.cc (Blog Author)7634 Mon, 29 Dec 2008 08:00:00 EST Made in America: Corporate Gall From CBSNews.com:

Like the child who kills his parents and then begs for mercy because he is an orphan, the U.S. Chamber of Commerce now is begging President-elect Barack Obama to protect corporate interests in the nation’s civil litigation system as a way of restoring jobs and bolstering an economy shattered largely (as we now know) by corporate greed and misfeasance.

Talk about your gall.

Here is what the president of the Chamber’s legal arm wrote in an open letter to Obama: “We understand the critical necessity of revitalizing the economy by restoring American jobs, encouraging the growth of U.S. businesses, and protecting the savings and investments of millions of Americans. However, we are concerned that the potential expansion of legal liability significantly impairs these much needed steps toward a national recovery.”

The quote may be roughly translated this way: “Now that corporate America has helped screw everything up and led us into the greatest economic crisis since the Depression, we need to make sure that corporate America isn’t aggressively punished for its misdeeds or legitimately thwarted from misdoing them again.”

This is either an astonishing hypocrisy - Is corporate America unaware that the rest of us are in on the secret of the causes of the recession? - or the clearest indication there can be that Big Business is, always has been, and always will be about protecting Big Business.

The Chamber has been pushing tirelessly for decades to rein in plaintiffs’ attorneys (who look to punish corporate negligence or fraud with civil lawsuits), deregulate industry and commerce (we all know how well Wall Street did with its freedom), and nullify important consumer protection laws (like the one in Maine which is allowing smokers to go after tobacco companies for false advertising). The lobbying effort has been national and local, highly-public and super-secret, and devastatingly successful.

Thanks in part to the Chamber and its Orwellian-named Institute for Legal Reform, the Securities and Exchange Commission backed off its scrutiny of screwy deals and schemes, the Congress was lax in its oversight of the mortgage industry, litigators were thwarted or punished, and the White House and Justice Department pushed a legal doctrine ("preemption") that almost always helped employers over employees.

All of these things, and more policies and practices endorsed by the Institute, helped unshackle the savageries of corporate America and left individuals less protected against an ever-freer and more predatory market.

Indeed, aside from the occasional Supreme Court decision that has helped the little guy, and the heroic efforts of states to help protect consumers and the environment, the history of our “litigation system” (as the Institute puts it) over the past 20 years is one of unremitting advances for the Chamber and its fellow travelers in law, politics and governance.

The Environmental Protection Agency has been reduced to a shadow of its former self so that polluters have gone unpunished, the Madoffs of the world have been nurtured and coddled and thus have flourished, and the brutal Savings and Loan crisis of the late 1980s has been made to look like a bake sale compared to the trillions of investment dollars lost and the hundreds of billions soon to be spent by our government.

Even the Web site for the Institute reads like a cruel parody. Not surprisingly, it does not highlight the personal stories of the millions of victims of corporate greed or managerial incompetence. It does not measure the number of lives saved, and fortunes protected, and pollution cleaned through these lawsuits. Instead, under the banner of “lawsuit abuse,” it tracks the lives of people who believe for one reason or another that they have been unfairly sued.

[Now, tell me, have you ever known someone who believed that he or she had just been fairly sued?]

Plaintiffs’ attorneys aren’t responsible for the mortgage-fueled economic meltdown. Class-action litigation isn’t, either. And don’t blame overzealous regulators or greedy employees who want better pay or conditions in their own factories. The people with whom the Chamber and the Institute do battle are not the people who invented or allowed the great pyramid schemes which brought down Freddie Mac and Fannie Mae. They did not force consumers to spend more than they earned or save less than they should. Corporate America is directly responsible for what has just happened to corporate America, and if you don’t believe me, ask the folks at Ford, GM and Chrysler.

The economic meltdown came about because business interests were able to greatly decrease the vital tensions between industry and regulation, between oversell and oversight. And it will take the restoration of those tensions by government leaders not just to help bring us out of our slump but to help ensure that the next downturn doesn’t come again for a long time.

So it seems to me that the last things the Obama administration ought to do once it takes over is further shackle lawyers, or stifle well-meaning state laws, or make it easier for businesses to avoid liability and culpability for their actions.

The Chamber and the Institute want us to believe that one of the problems which created our misery also happens to be one of the solutions to it. They call it “reform.”

I call it nonsense.

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http://www.weknowinjurylaw.com/blog/made%2Din%2Damerica%2Dcorporate%2Dgall%2Ecfm http://www.weknowinjurylaw.com/blog/made%2Din%2Damerica%2Dcorporate%2Dgall%2Ecfm james.carroll@cclaw.cc (Blog Author)7520 Tue, 23 Dec 2008 08:00:00 EST
Federal Judge predicts Pennsylvania Supreme Court will lift ban on uninsured driver recovery The Legal Intelligencer (12/19, Duffy) reports, "In a significant victory for uninsured drivers who are victims of accidents through no fault of their own, a federal judge has predicted that the Pennsylvania Supreme Court is poised to lift a court-imposed ban on their seeking awards of economic damages."

In the case, "Corbin v. Khosla, US District Judge Joel H. Slomsky found that although the Pennsylvania Motor Vehicle Financial Responsibility Law specifically prohibits an uninsured motorist from recovering first-party benefits in a suit against an insurer, the law includes no such bar for suits against alleged third-party tortfeasors." Slomsky wrote, "The bar on recovery in Section 1714 only addresses recovery from insurance companies."

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http://www.weknowinjurylaw.com/blog/federal%2Djudge%2Dpredicts%2Dpennsylvania%2Dsupreme%2Dcourt%2Dwill%2Dlift%2Dban%2Don%2Duninsured%2Ddriver%2Drecovery%2Ecfm http://www.weknowinjurylaw.com/blog/federal%2Djudge%2Dpredicts%2Dpennsylvania%2Dsupreme%2Dcourt%2Dwill%2Dlift%2Dban%2Don%2Duninsured%2Ddriver%2Drecovery%2Ecfm james.carroll@cclaw.cc (Blog Author)7420 Fri, 19 Dec 2008 08:00:00 EST
Wal-Mart Limits Subrogation Rights Against Workers This is interesting.  After the Shank case, Wal Mart is backing off on its quest to recoup tort recoveries from it's employees.

"Law360, New York (December 10, 2008) -- Public criticism against Wal-Mart Stores Inc.'s attempt to recoup health care costs from a brain-damaged former employee has driven the retail giant to alter its 2009 employee benefits plan and remove or limit its subrogation rights, according to a nonprofit group."

Sorry, no link.
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http://www.weknowinjurylaw.com/blog/walmart%2Dlimits%2Dsubrogation%2Drights%2Dagainst%2Dworkers%2Ecfm http://www.weknowinjurylaw.com/blog/walmart%2Dlimits%2Dsubrogation%2Drights%2Dagainst%2Dworkers%2Ecfm james.carroll@cclaw.cc (Blog Author)7385 Thu, 18 Dec 2008 08:00:00 EST
Road Risks Rise as More Drivers Drop Insurance The Wall Street Journal:

Higher Premiums, Joblessness Contribute to Alarming Trend; What to Do When You're Hit

"More drivers are letting their car insurance lapse because of the sour economy, putting themselves and others at risk.  Several hundred thousand drivers dropped their insurance in the past year as the jobless rate climbed, estimates a study to be released next month by the Insurance Research Council, an industry-funded group. Online agency Insurance.com says it also is seeing evidence recently of more uninsured motorists. It says that as many as 40% of callers following up on online applications had let their previous policies lapse, up from less than 10% a couple years ago."

"The trend is bad news for everybody on the road. If you're hit by an uninsured motorist, you may have to sue to recover costs, and many uninsured motorists have few assets. You can protect yourself by carrying uninsured-motorist coverage -- almost half of states require the added coverage -- but this may boost your premium."

This article points out the importance of buying the best coverage for your vehicle that's possible.  This means that you should purchase underinsurance and uninsurance.  Because so many drivers have no or limited insurance, buying extra coverage only protects you and your family.

To learn more about Underinsurance and Uninsurance, click here and here and here.

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http://www.weknowinjurylaw.com/blog/road%2Drisks%2Drise%2Das%2Dmore%2Ddrivers%2Ddrop%2Dinsurance%2Ecfm http://www.weknowinjurylaw.com/blog/road%2Drisks%2Drise%2Das%2Dmore%2Ddrivers%2Ddrop%2Dinsurance%2Ecfm james.carroll@cclaw.cc (Blog Author)7360 Wed, 17 Dec 2008 08:00:00 EST
Pennsylvania Worker recovers for fall from ladder bought at Home Depot A man who sustained a traumatic brain injury in a 25-foot fall from a ladder bought at a Home Depot store recovered $406,800. William Sohngen was using the Louisville extension ladder unattended while painting on the side of a two-story home. The base slid and he crashed to the ground because the rubber feet on the ladder's legs were worn down, he claimed.

The jury found that Home Depot was to blame because it sold the ladder and failed to mention that it had been in rental service for four years, which is against company policy. Sohngen also sued Louisville Ladder for defective design, but the jury found it wasn't negligent. Home Depot was found 60 percent liable and Sohngen was found 40 percent liable, which reduced the jury's $678,000 award.

To purchase a full report on this case, go to VerdictSearch.com.
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http://www.weknowinjurylaw.com/blog/pennsylvania%2Dworker%2Drecovers%2Dfor%2Dfall%2Dfrom%2Dladder%2Dbought%2Dat%2Dhome%2Ddepot%2Ecfm http://www.weknowinjurylaw.com/blog/pennsylvania%2Dworker%2Drecovers%2Dfor%2Dfall%2Dfrom%2Dladder%2Dbought%2Dat%2Dhome%2Ddepot%2Ecfm james.carroll@cclaw.cc (Blog Author)7206 Thu, 11 Dec 2008 08:00:00 EST
$2 Million Verdict for Foreman Injured by Pipe Plug The Legal Intelligencer (12/4, Needles) reported, "A federal jury entered the $2 million verdict against Vanderlans and Sons Inc., the manufacturer of the test plugs -- inflatable rubber stoppers that are placed in both ends of a pipe and inflated in order to test the pipe's airtightness -- before Judge J. Curtis Joyner in the U.S. District Court for the Eastern District of Pennsylvania on Nov. 25" in favor of a "construction foreman who completely lost use of his right arm after pressure buildup caused a 'test plug' to shoot from the end of a pipe he was installing and pierce his hand." The defendant's attorney "said he felt the case should never have made it to a jury once it was determined that his client's product was not unreasonably dangerous as a matter of law" and that "he will most likely file post-trial motions."

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http://www.weknowinjurylaw.com/blog/2%2Dmillion%2Dverdict%2Dfor%2Dforeman%2Dinjured%2Dby%2Dpipe%2Dplug%2Ecfm http://www.weknowinjurylaw.com/blog/2%2Dmillion%2Dverdict%2Dfor%2Dforeman%2Dinjured%2Dby%2Dpipe%2Dplug%2Ecfm james.carroll@cclaw.cc (Blog Author)7034 Fri, 05 Dec 2008 08:00:00 EST
Third Restatement of Torts Tops High Court's Agenda When the Pennsylvania Supreme Court convenes this week in Harrisburg, a major products liability case will be on its agenda.  Bugosh v. I.U. North America, Inc. could pull the state into the mainstream on product liability law or further entrench the Commonwealth in its own rules. PaAJ participated as Amicus on this case. Read more  from the Legal Intelligencer.  Read the Superior Court opinion.

This potentially landmark case could reshape products liability law by adopting the anti-consumer Restatement of Torts (3rd).  Former PaAJ President Cliff Rieders argued in favor of keeping Pennsylvania law consistent with the second restatement.


According to Rieders, the court showed great interest in his argument that the results in cases involving suppliers or distributors would be the same under either the restatement second or the restatement third.  The court did, however, engage in a lengthy “prospective” discussion about the application of the restatement third and its viability in future cases.  Rieders said that the court was extremely thoughtful and receptive to the historical importance of the restatement second, 402A.
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http://www.weknowinjurylaw.com/blog/third%2Drestatement%2Dof%2Dtorts%2Dtops%2Dhigh%2Dcourts%2Dagenda%2Ecfm http://www.weknowinjurylaw.com/blog/third%2Drestatement%2Dof%2Dtorts%2Dtops%2Dhigh%2Dcourts%2Dagenda%2Ecfm james.carroll@cclaw.cc (Blog Author)6990 Thu, 04 Dec 2008 08:00:00 EST
One in three toys contains toxic chemicals according to report CNN (12/4, Clifford) reports, "One in three toys tested was found to contain toxic chemicals such as lead, flame retardants and arsenic, according to a report issued Wednesday by an environmental group." The Ecology Center's Jeff Gearhart led the research and said, "Our hope is that by empowering consumers with this information, manufacturers and lawmakers will feel the pressure to start phasing out the most harmful substances immediately, and to change the nation's laws to protect children from highly toxic chemicals."

The
Long Island Newsday (12/4, Damiano) reports, "The new Consumer Product Safety Commission's regulations would make some products currently being sold illegal to sell two months from now. Experts insist the new regulations, while a good first step, do not go far enough to protect our children." The Los Angeles Times (12/4, Kozlowski) also covers the story.

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http://www.weknowinjurylaw.com/blog/one%2Din%2Dthree%2Dtoys%2Dcontains%2Dtoxic%2Dchemicals%2Daccording%2Dto%2Dreport%2Ecfm http://www.weknowinjurylaw.com/blog/one%2Din%2Dthree%2Dtoys%2Dcontains%2Dtoxic%2Dchemicals%2Daccording%2Dto%2Dreport%2Ecfm james.carroll@cclaw.cc (Blog Author)6988 Thu, 04 Dec 2008 08:00:00 EST
Girl paralyzed by drunken Giants fan gets $23.5 million in settlement with beer vendor The New Jersey Law Journal (12/3, Gottlieb) reported, "The beer refreshment vendor at Giants Stadium agreed to pay $23.5 million to settle the case of a girl paralyzed in a crash with a drunken football fan under an 18-month-old secret agreement that an appeals court unsealed Wednesday at the request of a public advocacy group."

Appeals court unseals settlement terms.
The
New Jersey Law Journal (12/4, Gottlieb) reports that the Appellate Division held "that a Bergen County judge erred when he sealed all records of the June 2007 settlement and subsequent proceedings to protect the privacy of the girl, Antonia Verni." The rationale for keeping the records sealed, which was to avoid abuse of the funds by the victim's father, "was too weak to overcome the presumption of openness of court proceedings and the public's right to know about a highly publicized case with significant issues, the appeals court said Wednesday." The Journal adds, "The ruling was a victory for Public Citizen, a Washington advocacy group associated with Ralph Nader that seeks to intervene in cases around the country when court records are kept from the public."

The AP (12/4, Porter) reports a contrasting settlement amount, saying that Aramark Corp. "has settled a lawsuit by the family of a girl paralyzed in a car accident caused by a drunken New York Giants fan for $26 million."

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http://www.weknowinjurylaw.com/blog/girl%2Dparalyzed%2Dby%2Ddrunken%2Dgiants%2Dfan%2Dgets%2D235%2Dmillion%2Din%2Dsettlement%2Dwith%2Dbeer%2Dvendor%2Ecfm http://www.weknowinjurylaw.com/blog/girl%2Dparalyzed%2Dby%2Ddrunken%2Dgiants%2Dfan%2Dgets%2D235%2Dmillion%2Din%2Dsettlement%2Dwith%2Dbeer%2Dvendor%2Ecfm james.carroll@cclaw.cc (Blog Author)6987 Thu, 04 Dec 2008 08:00:00 EST
Two injured in two-car accident in Sayre From the Daily Review:

SAYRE — A two-car accident in Sayre injured two and blocked traffic on Spring Street in front of Alliger’s House of Wings for around 20 minutes on Tuesday.

The accident occurred around 3:55 p.m. when Andrea Dauberman stopped on Spring Street to turn left and was struck from behind by a vehicle driven by Allen Wise, said Sergeant Steven Burlingame of the Sayre Police Department.

Both Dauberman and Wise were the only occupants of the vehicles at the time, police said.

Wise was treated for injuries on the scene and released, police said.


Dauberman was taken to Robert Packer Hospital where the extent of her injuries were unknown as of Tuesday afternoon.

Sayre Police, Greater Valley EMS, and the Sayre Fire Department responded to the scene, police said.

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http://www.weknowinjurylaw.com/blog/two%2Dinjured%2Din%2Dtwocar%2Daccident%2Din%2Dsayre%2Ecfm http://www.weknowinjurylaw.com/blog/two%2Dinjured%2Din%2Dtwocar%2Daccident%2Din%2Dsayre%2Ecfm james.carroll@cclaw.cc (Blog Author)6592 Wed, 26 Nov 2008 08:00:00 EST
Ten Worst Toys http://www.justice.org/WATCH_-_10_Worst_TOYS_-_NOVEMBER_2008.pdf ) and we added our own quick analysis and found a large majority of products—85 percent— recalled so far this year by the Consumer Product Safety Commission (CPSC) were produced in foreign countries and 57 percent were manufactured in China.  Of the 354 products recalled by the CPSC, 302 were produced in foreign countries and 201 were produced in China according to CPSC’s posted recall notices.

Recalled products Jan 1, 2008-Nov. 13, 2008

Total Recalled products –354

From the United States—52 or 15%

From China – 201 or 57%

From foreign countries –302 or 85%

This is significant because foreign manufacturers can set their prices lower because they are not subject to the equal prospect of restitution as U.S. manufacturers face if a consumer is injured by their product.  Also, foreign manufacturers often face huge discrepancies in product liability insurance rates.  Without the prospect of being held accountable through the U.S. civil justice system, a foreign producer has little incentive to maximize product quality and safety.   We have more information on this issue with a release we put out on a paper on the topic, see http://www.justice.org/cps/rde/xchg/justice/hs.xsl/4771.htm .

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http://www.weknowinjurylaw.com/blog/ten%2Dworse%2Dtoys%2Ecfm http://www.weknowinjurylaw.com/blog/ten%2Dworse%2Dtoys%2Ecfm james.carroll@cclaw.cc (Blog Author)6469 Sun, 23 Nov 2008 08:00:00 EST
New case law on Pennsylvania Underinsurance Litigation


The Pennsylvania Supreme Court recently decided the case of Nationwide v. Schneider where the Court affirms the en banc decision of the Superior Court and holds that you are not required to fully exhaust the first level of UIM before you pursue the second level UIM.  This is a big win for plaintiffs.

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http://www.weknowinjurylaw.com/blog/new%2Dcase%2Dlaw%2Don%2Dpennsylvania%2Dunderinsurance%2Dlitigation%2Ecfm http://www.weknowinjurylaw.com/blog/new%2Dcase%2Dlaw%2Don%2Dpennsylvania%2Dunderinsurance%2Dlitigation%2Ecfm james.carroll@cclaw.cc (Blog Author)6468 Sun, 23 Nov 2008 08:00:00 EST
Pedestrian in Wyalusing struck by vehicle


Pedestrian knock-down cases are often the most difficult motor vehicle personal injury cases to handle, particularly when the pedestrian is a child.  One of the major issues in these types of cases is who was at fault, the driver for driving too fast and not paying attention or the pedestrian who was did not "look both ways" before they crossed the street.  In many instances, it is a combination of both.

Take, for example, the following story from the
The Towanda Daily Review newspaper:

Brook Reese, 22, of Wyalusing was listed in fair condition at a local hospital Wednesday night after being struck by a vehicle on Monday.  Raymond White, 47, of Towanda was driving west on U.S. Route 6 in Wyalusing when, according to witnesses, Reese ran out in the path of White’s vehicle, police said.  White’s 2004 Chevrolet 3500 truck struck Reese, state police said. 
Reese was taken by ambulance to Robert Packer Hospital, where he was listed in fair condition Wednesday night, authorities said.  The accident occurred at 5:09 p.m. Monday at the intersection of Route 6 and John Street, according to the state police from Towanda.

As indicated in the article, the pedestrian ran out in the path of the vehicle.  But, it was dark at that time of day and the question that i had was how fast was the driver travelling.  On that section of Route 6, many cars travel way too fast.  But, these are the types of facts and issues that an experienced trial lawyer and investigate.  The best thing to do is to contact an experienced personal injury lawyer to have him/her review the case details.

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http://www.weknowinjurylaw.com/blog/pedestrian%2Din%2Dwyalusing%2Dstruck%2Dby%2Dvehicle%2Ecfm http://www.weknowinjurylaw.com/blog/pedestrian%2Din%2Dwyalusing%2Dstruck%2Dby%2Dvehicle%2Ecfm james.carroll@cclaw.cc (Blog Author)6467 Sun, 23 Nov 2008 08:00:00 EST
Woman serious after Wysox accident
Potter allegedly drove into the oncoming turning lane and hit Chilson’s vehicle around the front driver’s side, police stated. Chilson suffered minor injury. Potter was listed in serious condition Saturday night at Robert Packer Hospital, Sayre.

Despite this being just a 3 way interseciton, it is quite busy and can be confusing to some drivers.]]>
http://www.weknowinjurylaw.com/blog/woman%2Dserious%2Dafter%2Dwysox%2Daccident%2Ecfm http://www.weknowinjurylaw.com/blog/woman%2Dserious%2Dafter%2Dwysox%2Daccident%2Ecfm james.carroll@cclaw.cc (Blog Author)6466 Sun, 23 Nov 2008 08:00:00 EST
New post on the Pa Work Injury Law Blog about what to do when you're laid off
You can see the post here at the Pa Work Injury Law Blog.  The post addresses the situation where the employee is working light duty due to a work related injury but then they are laid off for economic reasons.  What happens to their wage benefits?  See the post to get the answer.
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http://www.weknowinjurylaw.com/blog/new%2Dpost%2Don%2Dthe%2Dpa%2Dwork%2Dinjury%2Dlaw%2Dblog%2Dabout%2Dwhat%2Dto%2Ddo%2Dwhen%2Dyoure%2Dlaid%2Doff%2Ecfm http://www.weknowinjurylaw.com/blog/new%2Dpost%2Don%2Dthe%2Dpa%2Dwork%2Dinjury%2Dlaw%2Dblog%2Dabout%2Dwhat%2Dto%2Ddo%2Dwhen%2Dyoure%2Dlaid%2Doff%2Ecfm james.carroll@cclaw.cc (Blog Author)6343 Wed, 19 Nov 2008 08:00:00 EST
Superior Court Holds that Restitution Is Not Covered By Insurance

The Pennsylvania Superior Court, on November 18, 2008, issued a decision in Brethren Mutual Insurance Company v. McKernan where the court holds that an insured may not seek reimbursement from his insurer for a criminal restitution award resulting from criminal prosecution.

The court notes that to allow this would run counter to the public policy of restitution which is to help the convict rehabilitate by impressing upon him in some degree the scope of the damages inflicted by his criminal conduct. The court makes sure to note that the decision should "not in any way be interpreted as affecting the law regarding insurance coverage available in civil actions based upon conduct which creates civil as well as criminal responsibility."

The court also writes in footnote 12 that, as a corollary, as part of the sentencing scheme the defendant can be directed to make a payment for restitution even though the victim has already been paid through a civil settlement or when the victim receives compensation from the victim's insurer for the loss sustained.

Thanks to Scott Cooper, Esquire for this information.]]>
http://www.weknowinjurylaw.com/blog/superior%2Dcourt%2Dholds%2Dthat%2Drestitution%2Dis%2Dnot%2Dcovered%2Dby%2Dinsurance%2Ecfm http://www.weknowinjurylaw.com/blog/superior%2Dcourt%2Dholds%2Dthat%2Drestitution%2Dis%2Dnot%2Dcovered%2Dby%2Dinsurance%2Ecfm james.carroll@cclaw.cc (Blog Author)6336 Wed, 19 Nov 2008 08:00:00 EST
Jury awards $20.5M Obstetrician, CMC held liable in botched birth A Lackawanna County jury handed a Jermyn family $20.5 million in a medical malpractice suit stemming from a boy’s lasting medical problems caused by mistakes made at his birth.  Judge Terrence Nealon said the award was the largest he has presided over in a medical malpractice case in his 10 years on the bench.

See the whole story
here.]]>
http://www.weknowinjurylaw.com/blog/jury%2Dawards%2D205m%2Dobstetrician%2Dcmc%2Dheld%2Dliable%2Din%2Dbotched%2Dbirth%2Ecfm http://www.weknowinjurylaw.com/blog/jury%2Dawards%2D205m%2Dobstetrician%2Dcmc%2Dheld%2Dliable%2Din%2Dbotched%2Dbirth%2Ecfm james.carroll@cclaw.cc (Blog Author)6320 Tue, 18 Nov 2008 08:00:00 EST
SUV's Not Safer for Kids Researchers writing in the current issue of  Pediatrics--(click for link to this research) say they have found little difference in injuries looking at crashes involving passenger cars and S.U.V.'s. The lead author of the study was Dr. Lauren Daly of the Alfred I. duPont Hospital for Children in Wilmington, Del.

Many parents believe that S.U.V.'s are safer and buy them to protect their children.

This belief, however, was not the case when the researchers looked at data from crashes in which almost 4,000 children were traveling in either S.U.V.'s or cars.

 

Rollovers occurred twice as often in S.U.V.'s, the study found, and children were three times as likely to be injured in rollovers than in other kinds of accidents. Use of proper restraining devices is important in all cars and especially important in S.U.V.'s because of the greater incidence of rollovers.

The study does suggest that pediatricians should advise S.U.V.-owning parents to make sure their children are properly restrained.

With S.U.V.'s, the new study reports, whatever benefits come with the added weight are erased by the higher risk of rolling over.]]>
http://www.weknowinjurylaw.com/blog/suvs%2Dnot%2Dsafer%2Dfor%2Dkids%2Ecfm http://www.weknowinjurylaw.com/blog/suvs%2Dnot%2Dsafer%2Dfor%2Dkids%2Ecfm james.carroll@cclaw.cc (Blog Author)6076 Tue, 11 Nov 2008 08:00:00 EST
Sharply curved highway ramp isn't unsafe, New York judge rules
A judge declined to award damages to a man who claimed that he was injured in a motor-vehicle accident on a dangerous section of an upstate highway. The claimant, Frederick Woods IV, was injured when his car spun off of a ramp that joined Interstate 84 and Route 17, in Phillipsburg.

Woods claimed that the sharply curving ramp could not be safely navigated at the posted 25-mph speed limit. He also claimed that the state was aware of the ramp's hazardous condition, given that several trucks had been involved in rollover accidents on the ramp. The state contended that Woods did not prove that the ramp was unsafe for cars and that Woods was simply traveling too fast on a wet road. Judge Terry Jane Ruderman agreed, and the claim was dismissed.

Woods v. State of New York
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http://www.weknowinjurylaw.com/blog/sharply%2Dcurved%2Dhighway%2Dramp%2Disnt%2Dunsafe%2Dnew%2Dyork%2Djudge%2Drules%2Ecfm http://www.weknowinjurylaw.com/blog/sharply%2Dcurved%2Dhighway%2Dramp%2Disnt%2Dunsafe%2Dnew%2Dyork%2Djudge%2Drules%2Ecfm james.carroll@cclaw.cc (Blog Author)5992 Fri, 07 Nov 2008 08:00:00 EST
Lackawanna County Court Denies POs To Separate Tort and UIM Claims in Post-Koken Case
On October 24, 2008 the trial court (Thomson, J.) in Lackawanna County denied Preliminary Objections in a post-Koken case which was filed in the Court of Common Pleas of Lackawanna County arising out of a car accident involving an underinsured vehicle/driver. 

In Moyer v. Harrigan/Erie Ins, the lawsuit was filed against the other driver in tort and the victim's insurance company in contract for UIM benefits.  The trial court denied the Preliminary Objections which sought to separate the claims and writes, "the rights and responsibilities of the parties will be effectively and efficiently fixed by a single action."  Further, the court notes "to sever the actions would force two trial on the same issues and with the same proofs.  This would be a significant waste of judicial resources for the court and would cause significant delay and expense to the parties."
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http://www.weknowinjurylaw.com/blog/lackawanna%2Dcounty%2Dcourt%2Ddenies%2Dpos%2Dto%2Dseparate%2Dtort%2Dand%2Duim%2Dclaims%2Din%2Dpostkoken%2Dcase%2Ecfm http://www.weknowinjurylaw.com/blog/lackawanna%2Dcounty%2Dcourt%2Ddenies%2Dpos%2Dto%2Dseparate%2Dtort%2Dand%2Duim%2Dclaims%2Din%2Dpostkoken%2Dcase%2Ecfm james.carroll@cclaw.cc (Blog Author)5986 Fri, 07 Nov 2008 08:00:00 EST
Investigating Yamaha Rhino
In a front-page article, the Wall Street Journal (11/4, A1, Trottman, Conkey) reports that the Consumer Product Safety Commission (CPSC) is investigating the Yamaha Rhino off-road vehicle "following reports of some 30 deaths," and "Yamaha faces more than 200 lawsuits in state and federal courts, many alleging the Rhino's design is unsafe."

While "Yamaha has settled some," it "recently beefed up its defense and says it may start to fight rather than settle." According to Yamaha, "plaintiffs' lawyers 'have seized on safety and product enhancements that Yamaha has made to the Rhino to allege baseless claims about the stability of the vehicles.'" The company added that "many injury claims...stem from improper operation, modifications such as removing the protective 'roll cage,' or failure to use a helmet and seat belt." Meanwhile, "some plaintiffs' lawyers allege that Yamaha failed to report Rhino problems to the CPSC as early as it should have."
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http://www.weknowinjurylaw.com/blog/investigating%2Dyamaha%2Drhino%2Ecfm http://www.weknowinjurylaw.com/blog/investigating%2Dyamaha%2Drhino%2Ecfm james.carroll@cclaw.cc (Blog Author)5916 Tue, 04 Nov 2008 08:00:00 EST
Consumer, plaintiffs' groups seek to end limitations on lawsuits
The Wall Street Journal (11/3, Timiraos) reports that in "a new aggressiveness by the plaintiffs' bar after years on the defensive," both "plaintiff and consumer groups, buoyed by prospects of a Democratic president and expanded Democratic majority in Congress, are preparing a big push for legislation that would roll back limitations on personal-injury and class-action lawsuits." They seek to limit s on "companies' use of federal regulations as a shield from litigation under state law, and laws to end mandatory arbitration in consumer contracts." In fact, "The centerpiece of the AAJ's agenda is its opposition to 'pre-emption." While "President Bush often complained about excessive lawsuits choking the American economy...many of his proposed changes -- limits on fees and big payouts -- were often stymied by trial lawyers." Now, "pro-plaintiff groups see an ally in Sen. Obama."

   
     Business said to favor McCain on lawsuit limits. 

Washington Times (11/1, Ramstack) reported, "The Chamber of Commerce has called for legislative curbs on lawsuit abuse, or tort reform, for years," and now "John McCain and Barack Obama have added their voices to complaints about how lawsuits have gone too far." However, "business groups tend to support Mr. McCain's proposals on lawsuit abuse more than Mr. Obama's ideas." Obama's "record on tort reform consists more of statements in favor of it than votes on the issue, compared with Mr. McCain, who has had a much longer legislative career." Lisa A. Rickard, president of the Chamber's Institute for Legal Reform, said "When it comes to issues of legal reform, McCain is stronger on those issues."


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http://www.weknowinjurylaw.com/blog/consumer%2Dplaintiffs%2Dgroups%2Dseek%2Dto%2Dend%2Dlimitations%2Don%2Dlawsuits%2Ecfm http://www.weknowinjurylaw.com/blog/consumer%2Dplaintiffs%2Dgroups%2Dseek%2Dto%2Dend%2Dlimitations%2Don%2Dlawsuits%2Ecfm james.carroll@cclaw.cc (Blog Author)5892 Mon, 03 Nov 2008 08:00:00 EST
Fatal crash caused by tractor-trailer yields $29M verdict
A jury awarded more than $29 million to a family that was involved in a fatal motor-vehicle accident on the New York State Thruway in January 2002. The jury found that the accident was caused by negligent overloading of a tractor-trailer.

The trailer's load clipped the underside of an overpass, crashed onto the road and caused motorist Denise Malkin to swerve into a collision with another vehicle. Malkin's husband, 63-year-old Peter Malkin, a passenger, was killed. Another passenger, the Malkins' teenage daughter, claimed that she developed residual post-traumatic stress disorder.

The jury awarded $28,438,864 for damages stemming from Mr. Malkin's death, and the Malkins' daughter recovered $1 million for her emotional suffering.

Estate of Malkin v. Transport Expressway Inc.

To see the full report on this case, go to VerdictSearch.com.
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http://www.weknowinjurylaw.com/blog/fatal%2Dcrash%2Dcaused%2Dby%2Dtractortrailer%2Dyields%2D29m%2Dverdict%2Ecfm http://www.weknowinjurylaw.com/blog/fatal%2Dcrash%2Dcaused%2Dby%2Dtractortrailer%2Dyields%2D29m%2Dverdict%2Ecfm james.carroll@cclaw.cc (Blog Author)5891 Mon, 03 Nov 2008 08:00:00 EST
U.S. House Report Further Confirms Bush Administration's Preemption Plot Yesterday the U.S. House Committee on Oversight and Government Reform issued a report saying FDA career staff objected to a change in preemption rules, even saying the central factual justifications for the agency’s new positions were false.  The report highlights internal FDA documents which show high-ranking career officials repeatedly warning about the dangers of not allowing drug companies to add additional warnings to their labels without FDA approval.  Prior to this the FDA had asserted through a rule on drug and device labeling that manufacturers should not be held accountable for failing to update their label with additional risks, if the original label was approved by the FDA. 

The report cites Dr. John Jenkins, the highest official in FDA’s new drug review process, writing:

M]uch of the argument for why we are proposing to invoke preemption seems to be based on the false assumption that the FDA approved labeling is fully accurate and up-to-date in a real time basis. We know that such an assumption is false.”

Prior to the rule being issued one FDA career official asserted that the rule “is not as it purports to be, consistent with the agency’s role in protecting the public health

A copy of the report can be found at:

http://oversight.house.gov/documents/20081029102934.pdf .

Associated Press story on the issue:

http://ap.google.com/article/ALeqM5h1C2M6_6XJkirIrtYpwjP_02a2pAD944G96G3

LA Times story:

http://www.latimes.com/news/nationworld/nation/la-na-fda30-2008oct30,0,1783486,print.story

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http://www.weknowinjurylaw.com/blog/us%2Dhouse%2Dreport%2Dfurther%2Dconfirms%2Dbush%2Dadministrations%2Dpreemption%2Dplot%2Ecfm http://www.weknowinjurylaw.com/blog/us%2Dhouse%2Dreport%2Dfurther%2Dconfirms%2Dbush%2Dadministrations%2Dpreemption%2Dplot%2Ecfm james.carroll@cclaw.cc (Blog Author)5833 Thu, 30 Oct 2008 08:00:00 EST
DOJ study finds plaintiffs won state court civil trials over half the time. According to the National Law Journal (10/30, Jaksic), a new Department of Justice report found that "plaintiffs won in more than half of state court civil trials in 2005 and were more likely to get a favorable verdict in bench than jury trials." Judges ruled in plaintiffs' "favor in 68 percent of the cases, while juries favored the plaintiffs 54 percent of the time."

The report also found that "the final median damage award of $28,000" and "punitive damages were awarded in about 5 percent of the cases, with $64,000 as the median punitive damages award."

Additionally, there was "a major drop in the number of civil trials, with numbers decreasing by 52 percent from 1992 to 2005 in the nation's 75 most populous counties. In these counties, the median final award also decreased, from $72,000 in 1992, to $43,000 in 2005." However, "in products liability trials, median awards were five times higher in 2005 and median medical malpractice awards more than doubled."

So much for the argument that there's a "frivolous lawsuit epidemic."
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http://www.weknowinjurylaw.com/blog/doj%2Dstudy%2Dfinds%2Dplaintiffs%2Dwon%2Dstate%2Dcourt%2Dcivil%2Dtrials%2Dover%2Dhalf%2Dthe%2Dtime%2Ecfm http://www.weknowinjurylaw.com/blog/doj%2Dstudy%2Dfinds%2Dplaintiffs%2Dwon%2Dstate%2Dcourt%2Dcivil%2Dtrials%2Dover%2Dhalf%2Dthe%2Dtime%2Ecfm james.carroll@cclaw.cc (Blog Author)5822 Thu, 30 Oct 2008 08:00:00 EST
Pennsylvania Supreme Court Holds That UIM "Other Insurance" Clause Is Void

The Pennsylvania Supreme Court issued a decision recently in Generette v. Donegal.  The Court, in a majority decision by Justice Baer (joined by C.J. Castille, Todd and McCaffery), reverses the Superior Court 5-4 en banc decision.

The Court holds that the Superior Court erred in concluding that the MVFRL provision relating to stacking and waiver applied to Generette, who was not an "insured" as defined by the MVFRL. Additionally, it holds that a portion of the "Other Insurance" clause in the Generette policy with Donegal is non-enforceable because it conflicts with the public policy of the MVFRL to provide "excess" rather than "gap" underinsured motorist coverage.  Justice Saylor filed a separate concurring and dissenting opinion and Justice Eakin a separate dissenting opinion.

This is a very confusing issue to the lay person and the written opinion certainly bears that out.  Just understand that it is a win for the good guys.  It has made a direct, positive result in one of the underinsurance claims being litigated here at Carroll & Carroll, P.C.

Thanks, as always, to Scott Cooper, Esquire for providing this information.

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http://www.weknowinjurylaw.com/blog/pennsylvania%2Dsupreme%2Dcourt%2Dholds%2Dthat%2Duim%2Dother%2Dinsurance%2Dclause%2Dis%2Dvoid%2Ecfm http://www.weknowinjurylaw.com/blog/pennsylvania%2Dsupreme%2Dcourt%2Dholds%2Dthat%2Duim%2Dother%2Dinsurance%2Dclause%2Dis%2Dvoid%2Ecfm james.carroll@cclaw.cc (Blog Author)5767 Tue, 28 Oct 2008 08:00:00 EST
New case law on slilp and fall on icey sidewalks owned by a City

Attached is a link to a new Pennsylvania Supreme Court decision yesterday in Reid v. City of Philadelphia. The Court (Eakin, J.) holds that Section 8542(b)(3) of the Political Subdivision Tort Claims Act does not apply to sidewalks, even those abutting local agency property.

This was a case where the injured victim slipped and fell on an icey sidewalk and was initially allowed to recover after the City was negligent in removing ice and snow from a sidewalk. The trial court and Commonwealth Court held that the City could be liable under the "real property" exception of the Political Subdivision Tort Claim Act. The Pennsylvania Supreme Court reversed that decision.

Thanks to Scott Cooper, Esquire for providing this information.

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http://www.weknowinjurylaw.com/blog/new%2Dcase%2Dlaw%2Don%2Dslilp%2Dand%2Dfall%2Don%2Dicey%2Dsidewalks%2Downed%2Dby%2Da%2Dcity%2Ecfm http://www.weknowinjurylaw.com/blog/new%2Dcase%2Dlaw%2Don%2Dslilp%2Dand%2Dfall%2Don%2Dicey%2Dsidewalks%2Downed%2Dby%2Da%2Dcity%2Ecfm james.carroll@cclaw.cc (Blog Author)5709 Mon, 27 Oct 2008 08:00:00 EST
Jury finds Unum committed fraud in some long term disability cases The New York Times (10/24, B2, Walsh) reports, "A federal jury in Boston found that Unum, the nation's largest disability insurer, had committed fraud in some cases by requiring customers to apply for Social Security benefits even though it knew they were not eligible. But the verdict...contained enough ambiguity to leave both sides declaring victory in the case, filed on behalf of the Social Security Administration."

In a release, Phillips & Cohen LLP claimed that Unum "had been trying to 'enrich itself' by telling thousands of claimants that it would cut their private disability benefits in half or more if they didn't apply for Social Security disability benefits, despite customers often telling Unum they were not eligible under Social Security's stricter criteria," according to the
Wall Street Journal (10/23, Kardos). In response to the Phillips & Cohen release, Unum said "the Boston jury actually sided with Unum on the majority of claims. The insurer said the two claims that were decided in favor of the plaintiff resulted in an award of less than $3,000." Unum's U.S. general counsel Chris Collins called the release "a blatant attempt...to try to influence public opinion in a situation where they were unable to claim victory in a court of law."

The
AP (10/23) adds that "in 2003, whistleblower Patrick Loughren filed a lawsuit under the federal False Claims Act." For the trial, Unum "produced 1,600 claim files that the plaintiffs then narrowed down to 101 claims that they said should not have been submitted to the Social Security Administration. This number was later reduced to 61 as it was revealed that many of these claims were actually awarded Social Security disability benefits, and in other instances there was no proof that an application was ever made to the government."

The
Chattanooga Times Free Press (10/24, Lazenby) notes, "Court records show the jury reviewed seven insurance claims. In four of those claims, the jury said Unum acted appropriately. Of the remaining three, the jury was unable to reach a unanimous verdict on one and ruled in favor of the plaintiff in the other two."


Interestingly, the whistleblower in the case, Patrick Loughren, is a Pennsylvania personal injury lawyer who I often correspond with on the Pennsylvania Association for Justice email listserv.
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http://www.weknowinjurylaw.com/blog/jury%2Dfinds%2Dunum%2Dcommitted%2Dfraud%2Din%2Dsome%2Dlong%2Dterm%2Ddisability%2Dcases%2Ecfm http://www.weknowinjurylaw.com/blog/jury%2Dfinds%2Dunum%2Dcommitted%2Dfraud%2Din%2Dsome%2Dlong%2Dterm%2Ddisability%2Dcases%2Ecfm james.carroll@cclaw.cc (Blog Author)5704 Mon, 27 Oct 2008 08:00:00 EST
Hedge clipper manufacturer not liable for landscaper's loss of fingers, says jury A jury in the United Stated District Court for the Eastern District of Pennsylvania found that a hedge clipper was not defectively designed, after a landscaper using the equipment accidentally amputated two of his fingers.

Fernando Sanchez, an employee of a landscaping company, was trimming bushes in 2003 when he lost control of an HC-2000 hedge clipper, manufactured by Echo Inc., and was injured when the clipper's blades came in contact with his hand.

Counsel for the plaintiff argued that the clipper should have turned off automatically as soon as Sanchez dropped it. Defense counsel alleged that Sanchez was contributorily negligent, since he was walking backwards directly before the accident.

The jury found no defective design, and ruled that both parties had been negligent, awarding Sanchez zero damages.


To order the full report on Sanchez v. Echo Inc., go to VerdictSearch.com.

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http://www.weknowinjurylaw.com/blog/hedge%2Dclipper%2Dmanufacturer%2Dnot%2Dliable%2Dfor%2Dlandscapers%2Dloss%2Dof%2Dfingers%2Dsays%2Djury%2Ecfm http://www.weknowinjurylaw.com/blog/hedge%2Dclipper%2Dmanufacturer%2Dnot%2Dliable%2Dfor%2Dlandscapers%2Dloss%2Dof%2Dfingers%2Dsays%2Djury%2Ecfm james.carroll@cclaw.cc (Blog Author)5636 Thu, 23 Oct 2008 08:00:00 EST
1.6 million cribs recalled after 2 infant deaths Drop-side beds were made by Delta Enterprises between 1995 and 2007

A recall of nearly 1.6 million cribs, triggered by the suffocations of two 8-month-old infants, has prompted a government agency to urge parents to inspect older drop-side cribs for safety problems.

Both of the suffocations involved infants who got stuck in a gap created when the movable side came off of its guide track.

The incidents, which involved Delta Enterprises cribs, involved safety pegs that are intended to prevent the drop side from lowering too far and slipping off the track. If these pegs are not installed, or if they fail to engage, the drop-side can detach and create a dangerous gap where babies can get stuck.

To see the full article go here at MSNBC.com.

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http://www.weknowinjurylaw.com/blog/16%2Dmillion%2Dcribs%2Drecalled%2Dafter%2D2%2Dinfant%2Ddeaths%2Ecfm http://www.weknowinjurylaw.com/blog/16%2Dmillion%2Dcribs%2Drecalled%2Dafter%2D2%2Dinfant%2Ddeaths%2Ecfm james.carroll@cclaw.cc (Blog Author)5589 Wed, 22 Oct 2008 08:00:00 EST
Court Denies Unopposed Motion to Dismiss in Lawsuit Arising out of Uninsured Motorist Claim The Federal Court for the Middle District of Pennsylvania denied an unopposed Motion to Dismiss on October 16, 2008 in Derocher v. Zurich American Insurance Company.  This case arises out of a breach of contract and bad faith lawsuit filed after the Plaintiff Derocher was awarded $600,000 in an uninsured motorist proceeding. 

The Plaintiff was driving her employers vehicle when the car accident occurred and the other driver was ultimately uninsured.  Her employer's vehicle had $1 million of uninsured motorist coverage (UM).  The plaintiff made a demand for settlement of $375,000 and a counter-offer by the insurance company was made of $150,000.  The award by the arbitrators was $600,000 and the Plaintiff filed suit against the insurance company after it refused to pay the award when the Plaintiff would not sign a full release.

The insurance company filed a Motion to Dismiss which was actually unopposed and the Court decision still denies the Motion to Dismiss.  The Court finds that the allegations in the complaint are sufficient to state "a plausible claim and presents a reasonable expectation that discovery will reveal evidence of an insurance contract between the Plaintiff and Defendant" on both the breach of contract and bad faith claims.  Thus, even though the Plaintiffs may not prevail on the ultimate claim their is a proper basis to proceed and the Motions to Dismiss are denied.

See the following links on more information about uninsured and underinsured motorist coverage
here and here and here and here

Thanks to
Attorney Scott Cooper for this information.
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http://www.weknowinjurylaw.com/blog/court%2Ddenies%2Dunopposed%2Dmotion%2Dto%2Ddismiss%2Din%2Dlawsuit%2Darising%2Dout%2Dof%2Duninsured%2Dmotorist%2Dclaim%2Ecfm http://www.weknowinjurylaw.com/blog/court%2Ddenies%2Dunopposed%2Dmotion%2Dto%2Ddismiss%2Din%2Dlawsuit%2Darising%2Dout%2Dof%2Duninsured%2Dmotorist%2Dclaim%2Ecfm james.carroll@cclaw.cc (Blog Author)5535 Tue, 21 Oct 2008 08:00:00 EST
Web site rates hospitals on specific medical procedures http://www.healthgrades.com/.

Check out the hospitals in the Northeast of Pennsylvania and upstate New York.]]>
http://www.weknowinjurylaw.com/blog/web%2Dsite%2Drates%2Dhospitals%2Don%2Dspecific%2Dmedical%2Dprocedures%2Ecfm http://www.weknowinjurylaw.com/blog/web%2Dsite%2Drates%2Dhospitals%2Don%2Dspecific%2Dmedical%2Dprocedures%2Ecfm james.carroll@cclaw.cc (Blog Author)5413 Fri, 17 Oct 2008 08:00:00 EST
New post on the Pa Work Injury Law Blog regarding unreasonable contest attorneys fees here.]]> http://www.weknowinjurylaw.com/blog/new%2Dpost%2Don%2Dthe%2Dpa%2Dwork%2Dinjury%2Dlaw%2Dblog%2Dregarding%2Dunreasonable%2Dcontest%2Dattorneys%2Dfees%2Ecfm http://www.weknowinjurylaw.com/blog/new%2Dpost%2Don%2Dthe%2Dpa%2Dwork%2Dinjury%2Dlaw%2Dblog%2Dregarding%2Dunreasonable%2Dcontest%2Dattorneys%2Dfees%2Ecfm james.carroll@cclaw.cc (Blog Author)5411 Fri, 17 Oct 2008 08:00:00 EST Bush Rule Changes Could Block Product-Safety Suits Bush administration officials, in their last weeks in office, are pushing to rewrite a wide array of federal rules with changes or additions that could block product-safety lawsuits by consumers and states.

See the full article here from
The Wall Street Journal.

The administration has written language aimed at pre-empting product-liability litigation into 50 rules governing everything from motorcycle brakes to pain medicine. The latest changes cap a multiyear effort that could be one of the administration's lasting legacies, depending in part on how the underlying principle of pre-emption fares in a case the Supreme Court will hear next month.

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http://www.weknowinjurylaw.com/blog/18%2Ecfm http://www.weknowinjurylaw.com/blog/18%2Ecfm james.carroll@cclaw.cc (Blog Author)5388 Thu, 16 Oct 2008 08:00:00 EST
Sayre Borough: Improving pedestrian safety

From The Morning Times:

A couple more incidents involving pedestrians being hit by motorists in the area around the Guthrie campus is resulting in forthcoming changes to some speed limits in that portion of the borough as well as the elimination of some parking spaces.
At Monday’s meeting of the borough’s administration committee, the committee agreed to recommend that the municipality amend its traffic ordinance to reflect these changes.

Specifically these changes focus on lowering the speed limit on South Wilbur Avenue from Hospital Place to Hayden Street and Hayden Street from South Wilbur Avenue to 100 feet west of Brock Street from 25 miles per hour to 15 miles per hour.  In addition, the borough would also eliminate the parking spaces on the west end of Howard Elmer Park on South Wilbur Avenue from West Packer Avenue to Park Place.

Council President Henry Farley noted that another Guthrie employee got struck by a motorist while crossing Wilbur Avenue, and a child riding a bicycle was struck by a motorist on Hayden Street.  “They (Guthrie officials) are asking to ‘please, slow the traffic down,’” said Farley. “Guthrie has the flashing lights (on Wilbur Avenue). They just need a speed limit sign to go with them.”  “The way it works with our speed control is the speed limit is 25, but the officer has to give the vehicle until they get to 35 before he can write the ticket,” said Borough Manager David Jarrett.

The committee will recommend that the council implement these speed limit reductions on a 90-day trial basis at the board’s Thursday meeting.  “It is critical,” said Farley. “It is not safe there, and we need to do as much as we can to calm the traffic down.”  The other proposed amendment to the traffic ordinance is aimed at improving student safety on West Lockhart Street in front of Sayre High School.

That amendment would eliminate the north side of West Lockhart Street from North Hopkins Street to South Brock Street from the residential parking permit area.  That area was originally zoned as “no parking during school hours” before it was included within the residential parking permit initiative.  “Concerns were raised earlier in the school year where you had people dropping (students) going east and you had people dropping off going west, and you’ve got kids running in between cars,” said Jarrett. “I met with the school superintendent and high school principal, and we talked over a couple of ideas.”

One of the ideas was to eliminate that portion of West Lockhart Street from the residential permit parking area, said Jarrett.  The other ideas were having an administrator from the high school out in front of the school and working to “keep things moving,” and having the police department increase its presence in that area, he explained.

The borough has already increased its police presence in that area as there is a police patrol dedicated to that school zone every morning, he said.  With two of these criteria having been met, borough officials will be pursuing the additional option of having a school administrator out in front of the school during those morning hours, Jarrett added.

Other amendments being proposed to the borough’s traffic ordinance include:

• setting 10-miles-per-hour speed limits for the entire lengths of Chacona Lane, LaBarr Lane, Oliver Lane and Repasky Lane.
• “no right turn on red signal” for motorists turning east from Lincoln Street into the northbound lane of Keystone Avenue and motorists turning west from Lincoln Street into the southbound lane of Keystone Avenue.

The committee will recommend that the council vote to advertise these proposed amendments to the traffic ordinance at its meeting this Thursday night. That session will be held at 6 p.m. at the borough on West Packer Avenue.
The council will then vote on whether to formally adopt these ordinance amendments at its Nov. 20 session.

Carroll & Carroll, P.C. handles pedestrian accidents.  You can find more information on these types of accidents here and here.

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http://www.weknowinjurylaw.com/blog/sayre%2Dborough%2Dimproving%2Dpedestrian%2Dsafety%2Ecfm http://www.weknowinjurylaw.com/blog/sayre%2Dborough%2Dimproving%2Dpedestrian%2Dsafety%2Ecfm james.carroll@cclaw.cc (Blog Author)5345 Tue, 14 Oct 2008 08:00:00 EST
Forty-one of the fifty-one rules proposed by NHTSA and FDA Contain Federal Pre-Emption Language Due to an unfriendly Congress, the Bush administration is finding a quieter way to make it difficult for consumers to sue businesses over faulty products. It is rewriting the bureaucratic rulebook. Since 2005, lawsuit limits have been included in fifty-one rules proposed or adopted by agency bureaucrats. Forty-one of the fifty-one rules proposed by agency bureaucrats came from the Food and Drug Administration (FDA) and the National Highway Traffic Safety Administration (NHTSA) alone. Bureaucratic agencies' use of its rule-making power is the final act in the administration's drive to protect companies from lawsuits. NHTSA and the FDA, however, deny any designated rules to undercut lawsuits.


Since he was the governor of Texas, President Bush has campaigned for lawsuit reform. As president, however, he has made little progress on the issue because Democrats have blocked him every time he tries to tackle the issue directly. Limits on lawsuits have been proposed for drug labeling and packaging, along with rules ranging from mattress flammability standards to dietary sweeteners and roof-crush requirements in car rollovers. Clearly, this kind of limitation is more troubling and far more effective than the standards that they apply to. If pre-empted, a particular standard no longer is valuable to the consumer as a rule of law.

The chief executive office of the American Association for Justice says agencies are engaging in activities that are allowing negligent companies off the hook and knowingly putting American consumers at risk. According to Joan Claybrook, former head of the NHTSA, companies are looking for total immunity and the regulators in the Bush Administration are helping them achieve that. Later this year, the Supreme Court will determine whether or not federal preemption relates to lawsuits and prescription drug labeling because defendant drugmakers contend they should not be involved in lawsuits since the FDA approved the product and warning label on the drug

The concept of federal preemption, rooted in the Supremacy Clause of the Constitution, is underlying this bureaucratic version of lawsuit reform. Federal preemption refers to situations in which federal regulation and law trumps state law. The issue at hand is whether or not companies can use the broad preemption language in regulatory preambles to get the case thrown out. An expansive interpretation of the preemption doctrine leaves little room for consumers to sue, and that is what has been taking place recently.

Here is a fact paper offered by the Pennsylvania Association for Justice on Federal Preemption in relation to defective products.

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http://www.weknowinjurylaw.com/blog/fortyone%2Dof%2Dthe%2Dfiftyone%2Drules%2Dproposed%2Dby%2Dnhtsa%2Dand%2Dfda%2Dcontain%2Dfederal%2Dpreemption%2Dlanguage%2Ecfm http://www.weknowinjurylaw.com/blog/fortyone%2Dof%2Dthe%2Dfiftyone%2Drules%2Dproposed%2Dby%2Dnhtsa%2Dand%2Dfda%2Dcontain%2Dfederal%2Dpreemption%2Dlanguage%2Ecfm james.carroll@cclaw.cc (Blog Author)5329 Tue, 14 Oct 2008 08:00:00 EST
Top Ten Jury Verdicts of 2007 are 25% lower than 2006 The total Top Ten awards for 2007 dropped 25 percent from 2006. This is 72 percent lower than in 2005. Last year's Top Ten includes several significant verdicts.

2007's #2 verdict was the largest negligent security award in the nation's history - $102.7 million to a man shot and paralyzed in the parking lot of a Miami strip club. The trial included an interesting battle over damages, with the defense arguing medical costs should be calculated based on care in Tunisia, where the plaintiff was from, while the plaintiff's attorneys argued he could not get adequate care in his native country.

The #3 verdict may well have longstanding implications, since it was the first large punitive damages award following the U.S. Supreme Court's decision in Philip Morris USA v. Williams, 127 S.Ct. 1057, to place new limits on punitives. The Los Angeles jury ordered DaimlerChrysler to pay $5.2 million in compensatory damages and $50 million in punitives to a man run over by his own truck when a faulty transmission caused it to slip from park to reverse.

Last year's Top Ten also included two pharmaceutical cases. For the third year in a row, Merck was held liable for its widely-used painkiller Vioxx. In a significant breakthrough for plaintiffs' lawyers, a New Jersey jury awarded $47.5 million to a man who had suffered a heart attack after using the medication for just two months. The plaintiff's first trial had ended in a defense verdict, but he was granted a retrial based on new evidence reported in the New England Journal of Medicine showing that short-term Vioxx use could increase cardiac risk.

In another pharmaceutical case, a Nevada jury awarded $134 million, including $99 million in punitive damages, to three women who developed cancer after using hormone replacement medication produced by Wyeth Pharmaceuticals. The 5,000 pending cases are based largely on a 2002 study concluding that women who use Prempro for five years have a 26 percent greater risk of developing breast cancer, a 29 percent greater risk of suffering a heart attack, a 41 percent greater chance of having a stroke and a 113 percent greater chance of having blood clots.

In the #1 verdict of 2007, a New York jury awarded $109 million in a medical malpractice case where the plaintiff's lawyer asked for just $18 million. The 34-year-old plaintiff suffered massive memory loss from a seizure caused by a botched diagnosis. The verdict, which was comprised entirely of compensatory damages, included $67 million for the wife's past and present loss of services.

That verdict marked New York's return to the Top Ten list after a two-year hiatus, and propelled the state into a first place tie with Texas for the most Top Ten verdicts (22) since 1995. California trails in a close third with 20.

Meanwhile, Florida is coming on strong with four Top Ten verdicts last year - the only state with more than one - putting it in fourth place, with 17 Top Ten verdicts since 1995.

* Punitive damages have also experienced a dramatic decline. The total punitive damages among the Top Ten verdicts in 2007 dropped 36 percent from 2006 - and this occurred after the total punitive awards had dropped 83 percent from 2005 to 2006.

* Punitive damages made up only 33 percent of total Top Ten awards in 2007, compared to 66 percent over the last 11 years


#1  $109 million verdict for brain-injured man

A New York jury awarded a brain-injured man and his wife $109 million after his lawyer asked for just $18 million. Even though he believed the medical arguments were making an impact on the jury, Wilkens said the most critical testimony was from Karen Dockery, the injured man's wife.

#2 $102.7M in Florida negligent security case

A Tunisian cruise ship waiter who is paralyzed from the waist down was awarded $102.7 million by a Florida jury this fall in the largest negligent security verdict ever.

#3 $50M punitive award sidesteps High Court ruling

In the first major punitive damages case since the U.S. Supreme Court placed new limits on punitive damages in February 2006, a Los Angeles jury ordered DaimlerChrysler to pay $5.2 million in compensatory damages and $50 million in punitives to a man run over by his own truck.

#4 Private plane crash yields $54M verdict

In a trial where the defense seemed to fold its case after two unsuccessful witnesses, a flight instructor and his student won a $54.5 million verdict for injuries they suffered in a private airplane crash.

#5 Nursing home to pay $54 million for resident who bled to death

In the largest personal injury verdict in state history, a New Mexico jury awarded $54 million to the family of a woman who bled to death in her nursing home.

#6 Family of brain-injured boy wins $50M

A Florida jury awarded $50 million to the family of a boy who was severely brain-injured when a pickup truck driven by a drunk driver crashed into his family's car.

#7 Exploding water heater brings $50M

An Alabama jury awarded $50 million to the family of a man who was killed by an exploding water heater, which the plaintiffs' lawyer likened to a "time bomb."

#8 $47.5 million Vioxx verdict helps prompt global settlement

Nine months before Merck reached a global settlement with thousands of Vioxx plaintiffs, a New Jersey jury awarded one man $47.5 million for a heart attack caused by taking the painkiller drug for just two months.

#9 Nevada woman wins $47.6 million in hormone therapy case

Three Nevada women won the biggest verdict to date in the ongoing hormone replacement therapy litigation against Wyeth, convincing a jury that the company knew its drugs caused breast cancer but failed to warn patients about the risks.

#10 $45 million for crash that killed unborn child and 9-year-old girl

In a case where the defendant's insurance company rejected a settlement offer for $200,000, a Florida jury awarded $45 million for the auto accident death of a woman's 9-year-old daughter and unborn child.


Thanks to Linda Sherman at L.S. Sherman Complex Litigation Specialists.]]>
http://www.weknowinjurylaw.com/blog/top%2Dten%2Djury%2Dverdicts%2Dof%2D2007%2Dare%2D25%2Dlower%2Dthan%2D2006%2Ecfm http://www.weknowinjurylaw.com/blog/top%2Dten%2Djury%2Dverdicts%2Dof%2D2007%2Dare%2D25%2Dlower%2Dthan%2D2006%2Ecfm james.carroll@cclaw.cc (Blog Author)5322 Tue, 14 Oct 2008 08:00:00 EST
Superior Court Holds Cab Driver Not Entitled To Underinsured Motorist Coverage

Attached is the link to the Pennsylvania Superior Court decision on October 10, 2008 in Nationwide Assurance Company v. Easley where the Superior Court affirms the trial court decision in Allegheny County which upheld 2 exclusions as they applied to preclude a cab driver from obtaining underinsured motorist coverage (UIM) on his personal policy for an accident which occured while he was driving a cab.

Calvin Easley
(Easley) was injured while operating a Yellow Cab Taxi in Pittsubrgh.  He paid a lease fee for use of the taxi during a 24 hour period and had no choice over the taxi he received. He did not have a paying customer in the cab when he was injured by a third party in a car accident. He was driving home and was intending to return the cab the next day.

After settling the third party claim and then, since the taxi company did not provide UIM coverage, he made a claim on his personal policy for UIM coverage but was denied based upon 2 exclusions which denied him coverage for accidents occuring in a vehicle avaliable for his "regular use" and also for vehicles "used to carry persons or property for a charge".

The Superior Court decision by Judge Popovich finds that the fact Easley did not have a passenger with him at the time the accident occured does not render the "use for hire" exclusion invalid nor did the fact that he operated different taxis render the "regular used" vehicle exclusion invalid. The Superior Court affirms the trial court decision and upholds both exclusions.

Thanks to Scott Cooper, Esquire for providing this information.

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http://www.weknowinjurylaw.com/blog/superior%2Dcourt%2Dholds%2Dcab%2Ddriver%2Dnot%2Dentitled%2Dto%2Dunderinsured%2Dmotorist%2Dcoverage%2Ecfm http://www.weknowinjurylaw.com/blog/superior%2Dcourt%2Dholds%2Dcab%2Ddriver%2Dnot%2Dentitled%2Dto%2Dunderinsured%2Dmotorist%2Dcoverage%2Ecfm james.carroll@cclaw.cc (Blog Author)5274 Mon, 13 Oct 2008 08:00:00 EST
Hidden Cameras Catch NY Nursing Home Abuse On Oct. 7, four employees of the Medford Multicare Center for Living in Long Island, New York were charged with nursing home abuse, based on video obtained with hidden cameras. State investigators placed a tiny camera in the room of an 84-year-old resident and monitored the video feed from January to March in 2007.

Nurses and Health Aides Charged

Two LPNs (licensed practical nurses) and two CNAs (certified nursing aides) were shown on the tape to have violated a number of serious safety regulations regarding patient care. They were arraigned in First District Court in Suffolk County and charged with misdemeanors — endangering the welfare of a physically disabled person, and a felony — falsifying records. For example: 

  • A CNA was talking on a cell phone while transferring the patient from a wheelchair to his bed. She bumped his head against the bed railing and failed to turn him to prevent pressure sores. 
  • Another CNA changed the patient's underwear only once during an 8-hour shift, despite the regulation requiring a change every two hours. 
  • An LPN did not take the patient's heart rate before giving him heart medication; she also failed to give the patient his medication at times because the Center had run out of the medicine, but she later wrote on the records that the medication had been withheld by a physician. 

According to New York Attorney General Andrew Cuomo, this case is the first in the New York City area to use hidden camera videos for evidence. In upstate New York, 26 convictions had already been obtained based on such technology. Cuomo stated, "We’re going to be using this technology aggressively…it gives us a whole new avenue for making these cases." 

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http://www.weknowinjurylaw.com/blog/hidden%2Dcameras%2Dcatch%2Dny%2Dnursing%2Dhome%2Dabuse%2Ecfm http://www.weknowinjurylaw.com/blog/hidden%2Dcameras%2Dcatch%2Dny%2Dnursing%2Dhome%2Dabuse%2Ecfm james.carroll@cclaw.cc (Blog Author)5230 Fri, 10 Oct 2008 08:00:00 EST
First female Judge in Bradford County History time....]]> http://www.weknowinjurylaw.com/blog/first%2Dfemale%2Djudge%2Din%2Dbradford%2Dcounty%2Dhistory%2Ecfm http://www.weknowinjurylaw.com/blog/first%2Dfemale%2Djudge%2Din%2Dbradford%2Dcounty%2Dhistory%2Ecfm james.carroll@cclaw.cc (Blog Author)5183 Thu, 09 Oct 2008 08:00:00 EST No cough or cold medicine for kids under 4 "The best thing a parent can do is comfort their children," said Laura Herrera, a Baltimore family practitioner and mother of two. "Keeping them as comfortable as possible is certainly better than giving cough and cold medicines."

In a concession to pediatricians, who doubt the drugs do much good for children and worry about risks, the companies that make over-the-counter remedies like Dimetapp and Pediacare announced they had changed their advice to parents for the second cold season in a row.

Besides recommending against cold medicines off drugstore and grocery shelves, the companies say not to give antihistamines to kids to help them sleep. The new instructions are on packages that started hitting stores this week.

Last year, the industry went against cough and cold medicines for children under 2. The latest changes came after discussions between drug companies and the Food and Drug Administration. The talks were kept quiet for months as federal health officials debated how to respond to a pediatricians' petition seeking to ban the medications for children under 6.

At a public hearing last week, neither industry officials nor regulators gave any hint of an impending announcement.

Cough and cold products have been given to children for decades, but it turns out the medicines were never scientifically tested to see how well they work in children. And recent research has found some untoward side effects, such as accidental overdoses.

Pediatricians who support a ban for children under 6 nonetheless said they were pleased with the industry announcement.

"It's a huge step forward," said Joshua Sharfstein, Baltimore's health commissioner. "There is no evidence that these products work in kids, and there is definitely evidence of serious side effects."

Problems with over-the-counter cough and cold medicines send 7,000 children to emergency rooms each year, with symptoms including hives, drowsiness and unsteady walking. Many children overdose by taking medicines when their parents are not looking.

"The 2- and 3-year-olds are definitely the highest risk," Sharfstein said. "More than 50 percent of the problem is with these kids. If they don't have this stuff around the home, they're less likely to grab it and ingest it."

See the article here from Philly.com.]]>
http://www.weknowinjurylaw.com/blog/no%2Dcough%2Dor%2Dcold%2Dmedicine%2Dfor%2Dkids%2Dunder%2D4%2Ecfm http://www.weknowinjurylaw.com/blog/no%2Dcough%2Dor%2Dcold%2Dmedicine%2Dfor%2Dkids%2Dunder%2D4%2Ecfm james.carroll@cclaw.cc (Blog Author)5180 Thu, 09 Oct 2008 08:00:00 EST
Candy with chemical in Chinese milk found in Conn. China was found in candy in four Connecticut stores this week, a state official said Wednesday.  Days after contaminated White Rabbit Creamy Candy was found in California, Connecticut Consumer Protection Commissioner Jerry Farrell Jr. said tests found melamine in bags of the candy sold at two New Haven stores, a West Hartford market and an East Haven store.

"We're concerned, obviously, there may have been bags sold of these before we got to them," Farrell said.  Anyone who has the candy should destroy it, Farrell said.

The contamination has been blamed for the deaths of four children and kidney ailments among 54,000 others. More than 13,000 children have been hospitalized and 27 people arrested in connection with the tainting.

Melamine, which is high in nitrogen, is used to make plastics and fertilizers and experts say some amount of the chemical may be transferred from the environment during food processing. But in China's case, suppliers trying to boost output are believed to have diluted their milk, adding melamine because its nitrogen content can fool tests aimed at verifying protein content.

Click here to see the full story from Yahoo News.]]>
http://www.weknowinjurylaw.com/blog/candy%2Dwith%2Dchemical%2Din%2Dchinese%2Dmilk%2Dfound%2Din%2Dconn%2Ecfm http://www.weknowinjurylaw.com/blog/candy%2Dwith%2Dchemical%2Din%2Dchinese%2Dmilk%2Dfound%2Din%2Dconn%2Ecfm james.carroll@cclaw.cc (Blog Author)5004 Thu, 02 Oct 2008 08:00:00 EST
Can Seller of Defective Used Equipment be Strictly Liable in New York? Mario Miquel Jaramillo was injured at work when his right hand was caught between two rollers on a 1964 Flexo Folder Gluer (“FFG”) which his employer, Glenwood Universal Packaging, purchased as used equipment from Weyerhaeuser Company in 1986. The evidence demonstrated that Weyerhaeusar sold an average of 3 used FFG’s per year, owned patents related to technology used in FFG’s, and had a working relationship with FFG manufacturers.

Jaramillo filed a complaint in New York state court against Weyerhaeuser alleging strict product liability. The case was removed to federal district court (S.D.N.Y.) and Weyerhaeusar was granted summary judgment as a casual seller of FFG’s under New York law and, therefore, could not be held strictly liable.

Casual sellers and regular sellers are distinguished in New York case law in strict product liability actions. The casual seller is only liable if it fails to warn the consumer of known defects that are not obvious or easily recognizable. The appellate court also noted that whether strict liability applies to sales of used goods, as in the present matter, is an open question under New York law.

After an examination of similar case law, the Second Circuit determined that it was necessary to have a resolution of the question of whether a seller of used industrial equipment can be deemed a “regular” seller in order to consider the propriety of summary judgment. To answer that question, it was certified to the New York Court of Appeals. The Second Circuit retained jurisdiction pending the outcome of the certification.

To see the full article from JudicialView.com, click here.]]>
http://www.weknowinjurylaw.com/blog/can%2Dseller%2Dof%2Ddefective%2Dused%2Dequipment%2Dbe%2Dstrictly%2Dliable%2Din%2Dnew%2Dyork%2Ecfm http://www.weknowinjurylaw.com/blog/can%2Dseller%2Dof%2Ddefective%2Dused%2Dequipment%2Dbe%2Dstrictly%2Dliable%2Din%2Dnew%2Dyork%2Ecfm james.carroll@cclaw.cc (Blog Author)4956 Tue, 30 Sep 2008 08:00:00 EST
The question of merit selection of appellate Judges in Pennsylvania In a hearing yesterday before the Senate Judiciary Committee in Harrisburg, PaAJ President Mike Foley spoke against legislation calling for merit selection of judges in Pennsylvania. Saying that he was presenting the historical position of the Association on the political appointment of judges along with his personal views, Foley testified that such a system would undermine the populist surge going on currently with the increased number of registered voters. Foley said: “I respectfully suggest that there is a new wave of populism rising in America, and taking away Pennsylvania voters’ right to select their appellate judges runs contrary to the tide.”

Meanwhile, an article in today’s Legal Intelligencer reports that the proponents of two merit selection bills say they plan to reintroduce the legislation in the new session. 
Read more  (Subscription required)]]>
http://www.weknowinjurylaw.com/blog/the%2Dquestion%2Dof%2Dmerit%2Dselection%2Dof%2Dappellate%2Djudges%2Din%2Dpennsylvania%2Ecfm http://www.weknowinjurylaw.com/blog/the%2Dquestion%2Dof%2Dmerit%2Dselection%2Dof%2Dappellate%2Djudges%2Din%2Dpennsylvania%2Ecfm james.carroll@cclaw.cc (Blog Author)4638 Wed, 17 Sep 2008 08:00:00 EST
Defendants agree to pay $2.9M for driver struck in intersection
Pennsylvania - Motor Vehicle Collision

A van driver who sustained multiple fractures in an intersection crash with a Mack truck received $2.9 million in court-appointed mediation. Joel Aponte, then 22, was struck by Francis Hacker who ran a red light. Aponte fractured his pelvis, femurs and C6 vertebra. He also suffered significant internal injuries that required stomach and bowel reconstruction. The settlement consisted of $1.9 million of Hacker's $2 million insurance policy and the $1 million limits of an underinsured motorist policy applicable to the van Aponte was driving.
 
To purchase the full report on this case, go to
VerdictSearch.com.

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http://www.weknowinjurylaw.com/blog/defendants%2Dagree%2Dto%2Dpay%2D29m%2Dfor%2Ddriver%2Dstruck%2Din%2Dintersection%2Ecfm http://www.weknowinjurylaw.com/blog/defendants%2Dagree%2Dto%2Dpay%2D29m%2Dfor%2Ddriver%2Dstruck%2Din%2Dintersection%2Ecfm james.carroll@cclaw.cc (Blog Author)4539 Fri, 12 Sep 2008 08:00:00 EST
District Court Holds that "Listed driver" Is Entitled to UIM Coverage On September 10, 2008, in Horace Mann Insurance Company v. Alben, the District Court for the Western District of Pennsylvania (Schwab, J.) held that the "reasonable expectations of the insured" estops an insurance company from denying underinsured motorist (UIM) benefits to a person who is a "listed driver" on another person's (girlfriends) policy.

Robert Alben (Alben) was injured in an accident which occurred in Ohio.  He was driving his employer's vehicle and then sought UIM coverage on his girlfriend's personal policy with Horace Mann because he was a "listed driver".

The Court initially holds that under the terms of the policy the "listed driver" is not automatically considered an "insured" or "covered person" to allow UIM coverage.  However, then the court addresses the reasonable expectations of the insured and the recent statement of the Third Circuit standard in West v. Lincoln Ben. Life. Ins., 509 F.3d 160 (3d. cir. 2007) which offered a "synthesized standard [as] the truest statement of of Pennsylvania law" regarding the doctrine of reasonable expectations.

Applying the standard the Court notes that the insurer must demonstrate by clear and convincing evidence that the insured did not have a reasonable expectation of coverage.  Based upon this standard and the facts of the case, particularly the fact that everyone involved testified that they all thought that by adding Alben to the policy as a listed driver he would be fully covered, the Court finds that the "listed driver" who was injured in his employers vehicle at the time of the accident is entitled to UIM coverage on his girlfriend's personal policy.

Thanks to Scott Cooper, Esquire for this information.
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http://www.weknowinjurylaw.com/blog/district%2Dcourt%2Dholds%2Dthat%2Dlisted%2Ddriver%2Dis%2Dentitled%2Dto%2Duim%2Dcoverage%2Ecfm http://www.weknowinjurylaw.com/blog/district%2Dcourt%2Dholds%2Dthat%2Dlisted%2Ddriver%2Dis%2Dentitled%2Dto%2Duim%2Dcoverage%2Ecfm james.carroll@cclaw.cc (Blog Author)4532 Fri, 12 Sep 2008 08:00:00 EST
Surprising change in Workers Compensation Medicare Set Aside practice and procedures There's a new post at the Pa Work Injury blog about a surprising change in Medicare's set aside policy for the settlement of workers' compensation cases for people who are also on social security disability.

It involves the immediate elimination of the claimant's ability to terminate or cash in a set aside account that is no longer needed.

Check it out.]]>
http://www.weknowinjurylaw.com/blog/surprising%2Dchange%2Din%2Dworkers%2Dcompensation%2Dmedicare%2Dset%2Daside%2Dpractice%2Dand%2Dprocedures%2Ecfm http://www.weknowinjurylaw.com/blog/surprising%2Dchange%2Din%2Dworkers%2Dcompensation%2Dmedicare%2Dset%2Daside%2Dpractice%2Dand%2Dprocedures%2Ecfm james.carroll@cclaw.cc (Blog Author)4501 Thu, 11 Sep 2008 08:00:00 EST
Employee Free Choice Act-- Funny Video Here's a funny video from American Rights At Work regarding the Employee Free Choice Act. 




Although this is supposed to be funny....you know there are people who think this is the right way for the world to be.  Of course, they are Republicans.]]>
http://www.weknowinjurylaw.com/blog/employee%2Dfree%2Dchoice%2Dact%2Dfunny%2Dvideo%2Ecfm http://www.weknowinjurylaw.com/blog/employee%2Dfree%2Dchoice%2Dact%2Dfunny%2Dvideo%2Ecfm james.carroll@cclaw.cc (Blog Author)4486 Wed, 10 Sep 2008 08:00:00 EST
Federal Judge Green-Lights Paxil Suit Over Teen's Suicide The family of a teenager who committed suicide in 2002 after taking the antidepressant drug Paxil is not barred from suing the manufacturer, because the U.S. Food and Drug Administration had not yet taken any position on whether there was a link between the use of such drugs by pediatric patients and an increased risk of suicidality, a federal judge has ruled.

In his 55-page opinion in Knipe v. SmithKline Beecham, Senior U.S. District Judge Ronald L. Buckwalter of the Eastern District of Pennsylvania concluded that a jury must decide whether the drug manufacturer "indeed possessed information, not available to the FDA, upon which it could have unilaterally added a warning to its labeling."

Buckwalter rejected arguments by SmithKline's defense team that the suit was pre-empted by FDA regulations which, at the time, did not call for suicide warnings for pediatric patients on drugs known as SSRIs, or selective serotonin reuptake inhibitors.

To see the entire article from Law.com, click
here.

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http://www.weknowinjurylaw.com/blog/federal%2Djudge%2Dgreenlights%2Dpaxil%2Dsuit%2Dover%2Dteens%2Dsuicide%2Ecfm http://www.weknowinjurylaw.com/blog/federal%2Djudge%2Dgreenlights%2Dpaxil%2Dsuit%2Dover%2Dteens%2Dsuicide%2Ecfm james.carroll@cclaw.cc (Blog Author)4459 Tue, 09 Sep 2008 08:00:00 EST
Sayre Borough: Mayor urges caution for motorists, pedestrians

Words of wisdom from Sayre, Pennsylvania Mayor Denny Thomas.

A serious car-versus-pedestrian accident that occurred on South Wilbur Avenue near the Guthrie campus last Thursday has resulted in Borough Mayor Denny Thomas urging motorists and pedestrians to use more caution when traveling down or crossing the street.

The individual who was struck last week, Kathleen Burnett of Waverly, is currently listed in critical condition in the intensive care unit at Robert Packer Hospital.  Borough Police Chief Kevin Guinane labeled the incident as an “accident” during Monday’s meeting of the municipality’s police committee. No additional information regarding last week’s accident has been released by the Sayre Borough Police Department.

There are approximately 10,000 vehicles that travel through the Borough of Sayre every day, said Thomas.  While Wilbur Avenue near the Guthrie campus has been a safety issue in the past, Guthrie officials have installed flashing yellow lights in an effort to help make that stretch of roadway safer, said Thomas.

In addition, the borough purchased “pedestrian crossing” signs that are placed in the crosswalks in the area in an effort to increase safety in that area, he noted.
Both motorists and pedestrians still need to exercise caution when traveling down or crossing any street, said Thomas.

“I’ve seen people drive their cars (while) on their cell phones,” he said. “Then you also see people coming across the ... crosswalks with headsets on, listening to music or whatever. People have to be more vigilant all the way around.”

The road in front of the old Robert Packer Hospital is dangerous.  There is so much traffic coming from/to the Guthrie campus, as well as pedestrians coming/going from the hospital to their parked cars and to downtown Sayre, that it creates a situation where walkers are likely to get hit.  Even though the article stated that no one was at fault, all it takes is a driver being inattentive for a split second to cause an accident like this.

To see the full article from The Morning Times, click here.

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http://www.weknowinjurylaw.com/blog/sayre%2Dborough%2Dmayor%2Durges%2Dcaution%2Dfor%2Dmotorists%2Dpedestrians%2Ecfm http://www.weknowinjurylaw.com/blog/sayre%2Dborough%2Dmayor%2Durges%2Dcaution%2Dfor%2Dmotorists%2Dpedestrians%2Ecfm james.carroll@cclaw.cc (Blog Author)4451 Tue, 09 Sep 2008 08:00:00 EST
Driver awarded for neck injuries in low speed rear-end accident A jury awarded $1.05 million to a woman who sustained cervical herniations in a three-car rear-ender. Carol Hewett sustained three disc bulges, two of which herniated, in the low-speed crash.

Her biomechanics expert testified that the rigid chassis of Hewett's pickup truck caused all of the force of the collisions to transfer into Hewett's cab. Although the speed of the vehicle that caused the initial crash was low, the change in velocity that Hewett's neck experienced was significant.

Hewett, who's an attorney, was awarded $113,000 for her past and future lost earnings.

Although this is a Florida case, I've blogged about it to demonstrate that minor or low speed impact cases can be successful if you have the right set of facts, a good trial lawyer and good experts.  Also, this case demonstrates that people can actually be seriously injured in low speed car accidents.

To see the full report of this case, go to VerdictSearch.com at Hewett v. State Farm Mutual Automobile Insurance Co.
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http://www.weknowinjurylaw.com/blog/driver%2Dawarded%2Dfor%2Dneck%2Dinjuries%2Din%2Dlow%2Dspeed%2Drearend%2Daccident%2Ecfm http://www.weknowinjurylaw.com/blog/driver%2Dawarded%2Dfor%2Dneck%2Dinjuries%2Din%2Dlow%2Dspeed%2Drearend%2Daccident%2Ecfm james.carroll@cclaw.cc (Blog Author)4434 Mon, 08 Sep 2008 08:00:00 EST
Superior Court upholds case of girl's fire hose death PennLive.com:

A Pennsylvania appeals court upheld a $4.5 million jury verdict Tuesday against a truck manufacturer over an accident near Pittsburgh four years ago in which a six-pound fire hose nozzle became a fatal projectile.

The lawsuit was filed by two families over an August 2004 incident in Coraopolis in which a hose dangling from a moving fire truck became stuck under a parked car, then whipped around and struck two 10-year-old girls standing on a nearby lawn.

Erin Schmidt died of head injuries and her close friend and classmate, Joeylynne Jeffress, suffered extensive injuries but survived.

Erin Schmidt died of head injuries and her close friend and classmate, Joeylynne Jeffress, suffered extensive injuries but survived.

The plaintiffs also include three witnesses to the accident: Erin's mother, Joyce A. Schmidt; Erin's 13-year-old sister, Lindsay; and Joeylynne's 14-year-old sister, Lauren.

A divided three-judge Superior Court panel said state law allows bystanders who witness injury to a close relative to collect damages for emotional distress under certain circumstances.

"The courts have generally concluded that the definition of 'physical harm' encompasses injury that solely manifests itself in the form of emotional shock and disturbance," wrote Judge Cheryl Lynn Allen for the majority.

The court also ruled that Sinor Manufacturing Inc. of Clinton, Okla., which purchased at least parts of the company that manufactured the fire truck, inherited liability for the accident. Sinor is now known as Freightliner Specialty Vehicles Inc.

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http://www.weknowinjurylaw.com/blog/superior%2Dcourt%2Dupholds%2Dcase%2Dof%2Dgirls%2Dfire%2Dhose%2Ddeath%2Ecfm http://www.weknowinjurylaw.com/blog/superior%2Dcourt%2Dupholds%2Dcase%2Dof%2Dgirls%2Dfire%2Dhose%2Ddeath%2Ecfm james.carroll@cclaw.cc (Blog Author)4365 Wed, 03 Sep 2008 08:00:00 EST
City settles with pre-teens who had oral sex on school bus
To see a full report of the case go to VerdictSearch.com.]]>
http://www.weknowinjurylaw.com/blog/city%2Dsettles%2Dwith%2Dpreteens%2Dwho%2Dhad%2Doral%2Dsex%2Don%2Dschool%2Dbus%2Ecfm http://www.weknowinjurylaw.com/blog/city%2Dsettles%2Dwith%2Dpreteens%2Dwho%2Dhad%2Doral%2Dsex%2Don%2Dschool%2Dbus%2Ecfm james.carroll@cclaw.cc (Blog Author)4281 Fri, 29 Aug 2008 08:00:00 EST
Court Holds No Underinsured Motorist Coverage Under Antique/Classic Car Policy Unless Actually Occupying It On August 26, 2008, the United States District Court for the Eastern District of Pennsylvania (Sanchez, J.) granted Foremost Insurance Group's Motion for Summary Judgment in Benner v. Foremost Insurance Group.  This case involved the tragic death of a girl, Benner, who was killed while occupying her friend's vehicle.  An underinsured motorist claim ("UIM") was pursued on a family member's Antique and Classic Auto insurance Policy and the insurance company denied the claim because it said that under the terms of the policy Benner had to be "actually occupying" the antique/classic vehicle at the time of the accident to qualify for UIM coverage. 

Benner's Estate argued that under Quinney v. American Modern Home Insurance Company, 145 F.Supp.2d 603 (M.D. Pa. 2001) she was entitled to coverage as a family member/insured and did not need to be occupying the vehicle to qualify for coverage.  However, the District Court observes that the policy language in Quinney is not the same as the language in Benner's policy.  In Quinney the policy language stated that the coverage was provided to an insured/family member without the actual occupying requirement but in the Benner policy the family member/insured had to be occupying.  Thus, since she was not occupying the antique/classic vehicle at the time of the accident, the Estate could not recover. 
 
Thanks to Scott B. Cooper, Esquire who provided this information.
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http://www.weknowinjurylaw.com/blog/court%2Dholds%2Dno%2Dunderinsured%2Dmotorist%2Dcoverage%2Dunder%2Dantiqueclassic%2Dcar%2Dpolicy%2Dunless%2Dactually%2Doc%2Ecfm http://www.weknowinjurylaw.com/blog/court%2Dholds%2Dno%2Dunderinsured%2Dmotorist%2Dcoverage%2Dunder%2Dantiqueclassic%2Dcar%2Dpolicy%2Dunless%2Dactually%2Doc%2Ecfm james.carroll@cclaw.cc (Blog Author)4241 Thu, 28 Aug 2008 08:00:00 EST
Worker who lost leg in construction accident receives $13M A construction worker whose leg had to be amputated after it was crushed by falling beams recovered a $13 million settlement.

In 2005, Timothy McGuire was standing near an 80-foot I-beam on the Harrah's casino construction site in Chester when an aerial boom operator hit the beam, causing a chain reaction of falling beams. They landed on McGuire's right leg, crushing it. After 16 surgeries, his leg ultimately had to be amputated above-the-knee.

McGuire and his wife blamed general contractor T.N. Ward and subcontractors Samuel Grossi & Sons and E&R Erectors, arguing that they failed to ensure workers' safety. The plaintiffs also alleged the beams were improperly stored. Lawsuits against Harrah's Entertainment and Chester Downs were dismissed after the other parties agreed to the settlement.  The case was filed in Philadelphia County.

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

At C&C Law, we have handled many construction site accidents in both Pennsylvania and New York.  See more information on the website relating to construction site accidents here and here.
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http://www.weknowinjurylaw.com/blog/worker%2Dwho%2Dlost%2Dleg%2Din%2Dconstruction%2Daccident%2Dreceives%2D13m%2Ecfm http://www.weknowinjurylaw.com/blog/worker%2Dwho%2Dlost%2Dleg%2Din%2Dconstruction%2Daccident%2Dreceives%2D13m%2Ecfm james.carroll@cclaw.cc (Blog Author)4229 Wed, 27 Aug 2008 08:00:00 EST
Boy blinded in ATV rollover gets $6M settlement A 9-year-old boy blinded in an ATV (all terrain vehicle) accident received a $6 million settlement from his grandfather and his grandfather's businesses.

In 2005, Thomas Richard Stewart V was operating an adult-size ATV on a hunting preserve owned by his grandfather, Thomas Richard Stewart III, when the boy became startled and lost control of the vehicle. It flipped over and its handlebar lodged into Thomas' left eye, blinding him in both eyes. 

Thomas and his mother sued Stewart and his businesses, claiming they should not have allowed the boy to operate an ATV unsupervised. The defendants contended they weren't liable and argued that Thomas' father was responsible for the ATV at the time of the accident. The settlement was reached through mediation.  The case was out of Fayette County which is south of Pittsburgh.

The see the entire report on this case, go to VerdictSearch.com.

I've blogged about ATV accidents many times before.  See here and here.  If not careful, these "toys" can be very dangerous.
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http://www.weknowinjurylaw.com/blog/boy%2Dblinded%2Din%2Datv%2Drollover%2Dgets%2D6m%2Dsettlement%2Ecfm http://www.weknowinjurylaw.com/blog/boy%2Dblinded%2Din%2Datv%2Drollover%2Dgets%2D6m%2Dsettlement%2Ecfm james.carroll@cclaw.cc (Blog Author)4228 Wed, 27 Aug 2008 08:00:00 EST
Government Officials Confirm Cancer Cluster Within 20-Mile Stretch of Pennsylvania A federal agency admits there's a 20-mile stretch in Pennsylvania where residents have an elevated risk of contracting a rare blood cancer.

Officials say people living between Hazleton and Tamaqua are four times as likely to suffer from the rare disease, known as PV, as anyone in the outlying area.

The area 80 miles northwest of Philadelphia is home to several Superfund toxic cleanup sites and a power plant fired by waste coal, though the government report stresses not enough data exists to trace the cancer cluster to a specific source.

Some residents blame a center where paint sludge, waste oils, and other carcinogens were recycled 30 years ago, as well as the power plant.

Go here to see the whole story.

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http://www.weknowinjurylaw.com/blog/government%2Dofficials%2Dconfirm%2Dcancer%2Dcluster%2Dwithin%2D20mile%2Dstretch%2Dof%2Dpennsylvania%2Ecfm http://www.weknowinjurylaw.com/blog/government%2Dofficials%2Dconfirm%2Dcancer%2Dcluster%2Dwithin%2D20mile%2Dstretch%2Dof%2Dpennsylvania%2Ecfm james.carroll@cclaw.cc (Blog Author)4195 Tue, 26 Aug 2008 08:00:00 EST
ELMIRA ATTORNEY CONTINUES TO INVESTIGATE OUTBREAK OF LEGIONNAIRES' DISEASE AT THE FLANNERY TOWERS Our friends at Ziff Law in Elmira kick'in ass and taking names.....

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http://www.weknowinjurylaw.com/blog/elmira%2Dattorney%2Dcontinues%2Dto%2Dinvestigate%2Doutbreak%2Dof%2Dlegionnaires%2Ddisease%2Dat%2Dthe%2Dflannery%2Dtowers%2Ecfm http://www.weknowinjurylaw.com/blog/elmira%2Dattorney%2Dcontinues%2Dto%2Dinvestigate%2Doutbreak%2Dof%2Dlegionnaires%2Ddisease%2Dat%2Dthe%2Dflannery%2Dtowers%2Ecfm james.carroll@cclaw.cc (Blog Author)4055 Wed, 20 Aug 2008 08:00:00 EST
More news on the Whole Foods beef recall From The New York Times:

Whole Foods Market
said Monday it would tighten oversight of its suppliers to keep substandard products out of stores, after recalling ground beef that apparently sickened customers in two states.

Scrambling to contain the fallout from a recall that threatens the chain’s reputation for quality, Whole Foods acknowledged that it had failed to catch an important change made by one of its suppliers of ground beef, Coleman Natural Beef.

After coming under new ownership, Coleman Natural began using a slaughterhouse in Omaha that had received multiple citations and had fought a long-running battle with the Agriculture Department. The government has said the plant was the source of ground beef that has sickened scores of people around the country.

Most of the beef was sold at grocers other than Whole Foods and recalled this summer. An additional 1.2 million pounds were recalled on Friday by the processor after illnesses in several states were tentatively linked to ground beef sold at Whole Foods and other stores.

At least four regional grocery chains — Fred Meyer, King Soopers and City Market, all owned by the Kroger Company, and Dorothy Lane — have also recalled suspect beef packages in recent days.

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http://www.weknowinjurylaw.com/blog/more%2Dnews%2Don%2Dthe%2Dwhole%2Dfoods%2Dbeef%2Drecall%2Ecfm http://www.weknowinjurylaw.com/blog/more%2Dnews%2Don%2Dthe%2Dwhole%2Dfoods%2Dbeef%2Drecall%2Ecfm james.carroll@cclaw.cc (Blog Author)3913 Tue, 12 Aug 2008 08:00:00 EST
PennDOT construction workers authorized to write police arrest reports This should be interesting....

To combat these unsafe drivers, Pennsylvania Department of Transportation highway crews are writing more and more police arrest reports targeting dangerous driving through construction zones.

The road crews only have the ability to make the initial report. The reports are then sent to the proper policing agency for further investigation. If the police find the driver was in violation of the law, then a citation is issued.

“Someone who drives in and puts another’s life in jeopardy, we follow that up,” Mike Cotter, press safety officer for District 4-0, said Wednesday as a PennDOT crew prepared for pothole work on Middle Road.
“Workers are so vulnerable, because they are so close to vehicles. Any kind of erratic driving puts them at risk,” Cotter added.

Since 1970, 10 workers in District 4-0 have been killed at construction sites as a result of drivers. The district encompasses Luzerne, Lackawanna, Wyoming, Wayne, Susquehanna and Pike counties.
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http://www.weknowinjurylaw.com/blog/penndot%2Dconstruction%2Dworkers%2Dauthorized%2Dto%2Dwrite%2Dpolice%2Darrest%2Dreports%2Ecfm http://www.weknowinjurylaw.com/blog/penndot%2Dconstruction%2Dworkers%2Dauthorized%2Dto%2Dwrite%2Dpolice%2Darrest%2Dreports%2Ecfm james.carroll@cclaw.cc (Blog Author)3890 Mon, 11 Aug 2008 08:00:00 EST
Whole Foods recalling possibly contaminated beef
See the entire story from HuffingtonPost.com here.]]>
http://www.weknowinjurylaw.com/blog/whole%2Dfoods%2Drecalling%2Dpossibly%2Dcontaminated%2Dbeef%2Ecfm http://www.weknowinjurylaw.com/blog/whole%2Dfoods%2Drecalling%2Dpossibly%2Dcontaminated%2Dbeef%2Ecfm james.carroll@cclaw.cc (Blog Author)3868 Sun, 10 Aug 2008 08:00:00 EST
Study finds settling is better than going to trial The following link is to a New York Times article regarding a comprehensive study of civil lawsuits that has found that most of the plaintiffs who decided to pass up a settlement offer and went to trial ended up getting less money than if they had taken that offer.  The study was co-authored by Randall Kiser, who is an analyst at DecisionSet which is a consulting firm that advises clients on litigation decisions.  When measuring how much money was recovered, 61% of the plaintiffs were wrong in deciding to not take a settlement and go to trial.  However, defendants made the wrong decision by proceeding to trial only 24% of the time. 

Approximately 80-92% of cases settle before they go to trial, however.  The study was based upon a review of 2,054 cases that went to trial from 2002 to 2005. 

Significantly, however, for plaintiffs who made the wrong decision and went to trial, it cost them about $43,000.00 on average.  But, the defendants who made the wrong decision about going to trial were hit in a much greater amount, on average of 1.1 million dollars.  Therefore, the errors that the defendants make are much more costly, despite the fact that the errors are made less often.

Also, the study indicated that factors such as rank of a lawyer’s law school and the size of a law firm were not dispositive in determining whether or not the lawyer and/or client made a mistake in going to trial.  Therefore, as per the study, it does not really matter if you come from a big city firm or a small local firm, the same mistakes can be made.

Because we are experienced trial lawyers here at C&C Law, I immediately spotted a few defects with the study.  First, the study stated that 15% of the cases the plaintiff received more than what was offered by the defendant, but less than what was demanded by the plaintiff before trial.  This points out a fallacy in the ‘study’.  A demand is a number to be worked from to reach an agreement.  The fact that a plaintiff received less than their demand means NOTHING, if that demand did not represent what a client would accept as settlement, i.e., I demand $100,000.00 on a case I wish to settle for $50,000.00.  After the trial, a jury awards met $57,000.00.  I may have received $43K less than my ‘demand’, but I still resolved the case for what I thought was ‘full value’.

Also, a study like this, which gets printed in the NY Times is dangerous as it misinforms clients and potential clients and suggests that the problem is that the attorney is operating under a contingency fee agreement.  (This has been a new ground for attack by tort (d)eformers; if they can’t prevent lawsuits and/or cap damages, then they will try to get limitations on contingency fee agreements, so people without money, who can’t pay hourly for an attorney, won’t be able to find an attorney because contingency fees have been curtailed or limited such that the claim is not worth the attorney risking his time and costs to prosecute.)

To see the entire article,
go here.

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http://www.weknowinjurylaw.com/blog/study%2Dfinds%2Dsettling%2Dis%2Dbetter%2Dthan%2Dgoing%2Dto%2Dtrial%2Ecfm http://www.weknowinjurylaw.com/blog/study%2Dfinds%2Dsettling%2Dis%2Dbetter%2Dthan%2Dgoing%2Dto%2Dtrial%2Ecfm james.carroll@cclaw.cc (Blog Author)3861 Fri, 08 Aug 2008 08:00:00 EST
New Consumer Safety Legislation Your world is about to become significantly safer. Last week, Congress passed the strongest consumer protection legislation in decades. This is good news for all of us, especially our children.

The new law nearly doubles CPSC funding by the year 2014. The agency will be able to build a new testing lab and add more than 100 staff positions. CPSC will soon have full-time inspectors at the major ports of entry looking for dangerous products before they can enter the country.

It will also have the power to impose much larger civil penalties on companies that break the rules. The maximum fine goes from $1.8 to $15 million.

Do you think something like this would have been passed if Republicans controlled Congress?  See...your vote really DOES matter.

To see the full article, go here.]]>
http://www.weknowinjurylaw.com/blog/new%2Dconsumer%2Dsafety%2Dlegislation%2Ecfm http://www.weknowinjurylaw.com/blog/new%2Dconsumer%2Dsafety%2Dlegislation%2Ecfm james.carroll@cclaw.cc (Blog Author)3847 Thu, 07 Aug 2008 08:00:00 EST
10 Worst Insurance Companies in America The American Association of Justice has released a report titled, "The Ten Worst Insurance Companies in America:  How they raise premiums, deny claims and refuse insurance to those who need it the most.

Here they are in all their glory:

1. Allstate

2. Unum

3. AIG

4. State Farm

5. Conseco

6. WellPoint

7. Farmers

8. UnitedHealth

9. Torchmark

10. Liberty Mutual

To identify the worst insurance companies for consumers, researchers at the American Association for Justice (AAJ) undertook a comprehensive investigation of thousands of court documents, SEC and FBI records, state insurance department investigations and complaints, news accounts from across the country, and the testimony and depositions of former insurance agents and adjusters. Our final list includes companies across a range of different insurance fields, including homeowners and auto insurers, health insurers, life insurers, and disability insurers. 

The attorneys at C&C Law deal with most of these insurance companies on a daily basis.  Based upon my experience, I can attest to this list as being quite accurate.  These companies really should be ashamed of themselves.

To see the whole AAJ report in .pdf format, click here to go to C&C Law's Library.

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http://www.weknowinjurylaw.com/blog/10%2Dworst%2Dinsurance%2Dcompanies%2Din%2Damerica%2Ecfm http://www.weknowinjurylaw.com/blog/10%2Dworst%2Dinsurance%2Dcompanies%2Din%2Damerica%2Ecfm james.carroll@cclaw.cc (Blog Author)3781 Mon, 04 Aug 2008 08:00:00 EST
Drunken man paralyzed after fall down stairs gets $17M A New York jury awarded nearly $17 million to a man who sustained a paralyzing spinal injury after he tripped through the entrance of his Bronx residence. The plaintiff, Juan Santa Barbara, tripped on a door saddle, fell through his doorway, over a small wall and down a stairway, fracturing his spine. Santa Barbara sued his landlord, claiming that the saddle was unreasonably tall and constituted a tripping hazard. The landlord argued that the area was safe, and it also noted that Santa Barbara was intoxicated at the time of the incident.
The jury assigned 70-percent liability to the landlord and 30-percent liability to Santa Barbara. It awarded $24,162,000, but that award was reduced by 30 percent, to reflect Santa Barbara's share of the fault.

Santa Barbara v. Migdol Realty Management, LLC
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http://www.weknowinjurylaw.com/blog/drunken%2Dman%2Dparalyzed%2Dafter%2Dfall%2Ddown%2Dstairs%2Dgets%2D17m%2Ecfm http://www.weknowinjurylaw.com/blog/drunken%2Dman%2Dparalyzed%2Dafter%2Dfall%2Ddown%2Dstairs%2Dgets%2D17m%2Ecfm james.carroll@cclaw.cc (Blog Author)3743 Fri, 01 Aug 2008 08:00:00 EST
Court Holds Police Officer Injured Outside His Cruiser Is A Protected Person On July 28, 2008, Judge Joyner in the United States District Court for the Eastern District of Pennsylvania Granted the Insured's Motion for Summary Judgment in St. Paul Fire & Marine Insurance Co. v. Rhein.  Judge Joyner holds that Rhein was occupying his police vehicle at the time he was injured while conducting a routine traffic stop. 

In Rhein, the officer was injured in the course and scope of his employment.  He pulled over a speeding vehicle, stopped behind the car with his emergency lights on and exited his cruiser to conduct the stop.  At some point during the exchange of information the other driver's car began to roll backward and Rhein's hand became wedged inside the car door causing his injuries.  He settled the third party case with the other drivers insurance company and then sought underinsured motorist coverage form the Township insurer which denied coverage arguing that Rhein was not a "protected person" under the policy because he was not "occupying" the cruiser at the time of the accident.  

Applying the four (4) part "occupancy" test from the Pennsylvania Supreme Court decision in Utica Mutual Insurance Co. v. Contrisciane, 473 A.3d 1005 (Pa. 1984) the Court holds that Rhein was "occupying" the cruiser at the time of the accident.  One of the main issue to the four part test was whether Rhein was "vehicle oriented".  The court relies upon Property and Casualty Insurance Co. of Hartford v. Caperilla, 2004 WL 1551739 (E.D. Pa. July 9, 2004) where another officer was injure din a similar manner.    Thus, he is a covered and protected person and entitled to the underinsured motorist coverage.

Thanks to Attorney Scott Cooper for this information.

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http://www.weknowinjurylaw.com/blog/court%2Dholds%2Dpolice%2Dofficer%2Dinjured%2Doutside%2Dhis%2Dcruiser%2Dis%2Da%2Dprotected%2Dperson%2Ecfm http://www.weknowinjurylaw.com/blog/court%2Dholds%2Dpolice%2Dofficer%2Dinjured%2Doutside%2Dhis%2Dcruiser%2Dis%2Da%2Dprotected%2Dperson%2Ecfm james.carroll@cclaw.cc (Blog Author)3713 Thu, 31 Jul 2008 08:00:00 EST
Equal justice under law must be campaign issue Letter to the editor by Mike Foley who is the new President of the Pennsylvania Association for Justice.

The next president will have the opportunity to inalterably shape the appellate courts for decades to come. Will he choose judges who respect the importance of an open civil justice system or will he choose justices and judges who will continue the eight-year trend of minimizing the right to a jury trial?

Thus, as we consider the two candidates for president, what are some of the questions we must ask of them?

First, will he support the trend of federal courts to snub their noses at the constitutional powers of the Congress, state governments and courts to share a role in protecting consumers, or say that the federal executive branch’s power is supreme?

Will he support legislation to make mandatory clauses for one-sided arbitration in contracts illegal? These clauses are included in everything from a cell phone to a nursing home and now found more and more in health care.

Finally, will his health care reform bill make patient safety a major component to reduce the incidents of negligence and preventable infections?

“Equal Justice Under Law” are the words carved on the fa?ade of the Supreme Court Building. But, by and large, the “equal” part is not being respected.

To see the entire editorial from the TimesTribune.com...go here.

 

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http://www.weknowinjurylaw.com/blog/equal%2Djustice%2Dunder%2Dlaw%2Dmust%2Dbe%2Dcampaign%2Dissue%2Ecfm http://www.weknowinjurylaw.com/blog/equal%2Djustice%2Dunder%2Dlaw%2Dmust%2Dbe%2Dcampaign%2Dissue%2Ecfm james.carroll@cclaw.cc (Blog Author)3655 Mon, 28 Jul 2008 08:00:00 EST
Allstate Finally Gives Up McKinsey Documents in Florida From InsuranceJournal.com:

A Jackson County judge agreed on Wednesday, July 23 to throw out a contempt order against Allstate Insurance after determining the company had finally complied with his directions to release confidential documents.

The Kansas City Star reported on its Web site that the decision negates more than $7 million in fines that Allstate had accrued after Judge Michael Manners last year began levying penalties of $25,000 a day against the company in a bad-faith case.

The two sides agreed to settle the case on confidential terms last week, avoiding a Monday trial date. During a hearing Wednesday, Manners agreed that the company was no longer out of compliance with his order to release the confidential records and lifted the contempt order.

Attorneys for both Aldridge and the accident victim, Dale Deer, of Warrensburg, requested a set of records prepared by consultant McKinsey & Co. on behalf of the insurance company that showed how it set up a claims payment system in the 1990s aimed at generating big earnings while keeping claims payments low.

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http://www.weknowinjurylaw.com/blog/allstate%2Dfinally%2Dgives%2Dup%2Dmckinsey%2Ddocuments%2Din%2Dflorida%2Ecfm http://www.weknowinjurylaw.com/blog/allstate%2Dfinally%2Dgives%2Dup%2Dmckinsey%2Ddocuments%2Din%2Dflorida%2Ecfm james.carroll@cclaw.cc (Blog Author)3618 Fri, 25 Jul 2008 08:00:00 EST
Unhealthy neglect of CDL standards in Pennsylvania This is an editorial in the Towanda Daily Review on an item that we already wrote about in our library section.  You can see our article here on unfit and unhealthy truck and bus drivers.

From the Editorial....

In 2006, according to the U.S. Department of Transportation, 5,300 people died and another 126,000 were injured in accidents involving large commercial vehicles. In 12 percent of those crashes, the professional driver was found to have a physical impairment that contributed to the accident, from heart disease to sleep apnea.

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http://www.weknowinjurylaw.com/blog/unhealthy%2Dneglect%2Dof%2Dcdl%2Dstandards%2Din%2Dpennsylvania%2Ecfm http://www.weknowinjurylaw.com/blog/unhealthy%2Dneglect%2Dof%2Dcdl%2Dstandards%2Din%2Dpennsylvania%2Ecfm james.carroll@cclaw.cc (Blog Author)3614 Fri, 25 Jul 2008 08:00:00 EST
I call insurance company rules! This is why you need a lawyer....insurance companies get to change the rules all the time.

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http://www.weknowinjurylaw.com/blog/i%2Dcall%2Dinsurance%2Dcompany%2Drules1%2Ecfm http://www.weknowinjurylaw.com/blog/i%2Dcall%2Dinsurance%2Dcompany%2Drules1%2Ecfm james.carroll@cclaw.cc (Blog Author)3546 Mon, 21 Jul 2008 08:00:00 EST
Conveyor's designer pays $1.4M to man whose arm was snared A conveyor system's designer agreed to pay $1.4 million to a man who sustained severe injuries of an arm that became caught in the system's moving belt.  The case was filed in New York. 
Steven Raynor sued New Berlin, Wis.-based HK Systems Inc., alleging that the company negligently failed to shield a 5-inch-wide opening that allowed access to the underside of its conveyor system's belt. While reaching beneath the conveyor, Raynor's left arm entered that opening and became snared by the belt.
Some 10 minutes elapsed before a co-worker arrived and freed Raynor's arm, which was broken in two places. The defense argued that Raynor's employer had removed a designer-installed shield that protected the opening, but it ultimately agreed to a pretrial settlement.
To see the full report on this case, go to VerdictSearch.com.
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http://www.weknowinjurylaw.com/blog/conveyors%2Ddesigner%2Dpays%2D14m%2Dto%2Dman%2Dwhose%2Darm%2Dwas%2Dsnared%2Ecfm http://www.weknowinjurylaw.com/blog/conveyors%2Ddesigner%2Dpays%2D14m%2Dto%2Dman%2Dwhose%2Darm%2Dwas%2Dsnared%2Ecfm james.carroll@cclaw.cc (Blog Author)3514 Fri, 18 Jul 2008 08:00:00 EST
Emergency Unemployment Compensation I just posted over at the Work Injury Law blog about the recent enactment of the Emergency Unemployment Compensation law.  See the details here to see if you're eligible.

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.

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http://www.weknowinjurylaw.com/blog/emergency%2Dunemployment%2Dcompensation%2Ecfm http://www.weknowinjurylaw.com/blog/emergency%2Dunemployment%2Dcompensation%2Ecfm james.carroll@cclaw.cc (Blog Author)3496 Thu, 17 Jul 2008 08:00:00 EST
I'm in the news.... See the article here about one of our workers' compensation clients.

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http://www.weknowinjurylaw.com/blog/im%2Din%2Dthe%2Dnews2%2Ecfm http://www.weknowinjurylaw.com/blog/im%2Din%2Dthe%2Dnews2%2Ecfm james.carroll@cclaw.cc (Blog Author)3474 Wed, 16 Jul 2008 08:00:00 EST
When does ATV riding become illegal? I often blog about AVT (All Terrain Vehicle) accidents and law suits; therefore, I thought this editorial from The Daily Review is very good.

See it here.

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http://www.weknowinjurylaw.com/blog/when%2Ddoes%2Datv%2Driding%2Dbecome%2Dillegal%2Ecfm http://www.weknowinjurylaw.com/blog/when%2Ddoes%2Datv%2Driding%2Dbecome%2Dillegal%2Ecfm james.carroll@cclaw.cc (Blog Author)3473 Wed, 16 Jul 2008 08:00:00 EST
Insured Not Allowed UM/UIM Benefits for Accidents Caused By Co-employee On July 15, 2008 the District Court for the Western District of Pennsylvania (Lancaster, J.) held in Shaw v. State Farm Insurance Company that an insured is not allowed to recover UM/UIM benefits under his insurance policy with State Farm for injuries sustained during the course and scope of his employment due to the negligence of a co-worker.  Shaw was injured in a work related accident when the garbage truck he was riding in was negligently driven by a co-worker.  He sought and received workers compensation benefits and did not sue his employer or co-worker due to immunity under the Workers Compensation Act.  He then sought UM/UIM benefits from State Farm which denied the claim by arguing that the benefits were not "legally entitled" and thus Shaw could not recover. 
The Court relies mainly upon a not precedential Third Circuit case in Nationwide Mut Ins Co v. Chiao, 186 Fed.Appx. 181 (3d Cir. 2006) and grants State Farm's Motion for Summary Judgment.  However, there is no mention or reference to the state trial court decision from Adams County in Brumbaugh v. Erie Insurance Exchange in 2006 where Judge Walker in Franklin County held that an insured was entitled to UM/UIM coverage in the same factual situation.
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http://www.weknowinjurylaw.com/blog/insured%2Dnot%2Dallowed%2Dumuim%2Dbenefits%2Dfor%2Daccidents%2Dcaused%2Dby%2Dcoemployee%2Ecfm http://www.weknowinjurylaw.com/blog/insured%2Dnot%2Dallowed%2Dumuim%2Dbenefits%2Dfor%2Daccidents%2Dcaused%2Dby%2Dcoemployee%2Ecfm james.carroll@cclaw.cc (Blog Author)3471 Wed, 16 Jul 2008 08:00:00 EST
New Pennsylvania Federal Court Section 1734 Sign Down Case Nullifies Alleged Sign down Of UIM Coverage On July 10, 2008, the District Court for the Middle District of Pennsylvania (Judge Vanaskie) granted the insureds motion for summary judgment and set aside an alleged sign down of underinsured motorist coverage in The Brethren Mutual Ins. Co. v. Triboski-Gray.  The insurance company argued that a sign down from $250,000 in bodily injury (BI) coverage to $35,000 in underinsured motorist (UIM) coverage was valid because the insured signed the bottom of a 2 page application for coverage.  Relying upon the Pennsylvania Supreme Court decision in Lewis v. Erie, 793 A.2d 143 (Pa. 2002) and Pennsylvania Superior Court decision in Motorists v. Emig, 664 A.2d 559 (Pa. Super. 1995), the Court holds that the insureds "signature on an application completed by the insurance company's agent does not constitute a written request for UM/UIM coverage limits below the coverage requested for bodily injury."    

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.

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http://www.weknowinjurylaw.com/blog/new%2Dpennsylvania%2Dfederal%2Dcourt%2Dsection%2D1734%2Dsign%2Ddown%2Dcase%2Dnullifies%2Dalleged%2Dsign%2Ddown%2Dof%2Duim%2Dco%2Ecfm http://www.weknowinjurylaw.com/blog/new%2Dpennsylvania%2Dfederal%2Dcourt%2Dsection%2D1734%2Dsign%2Ddown%2Dcase%2Dnullifies%2Dalleged%2Dsign%2Ddown%2Dof%2Duim%2Dco%2Ecfm james.carroll@cclaw.cc (Blog Author)3444 Mon, 14 Jul 2008 08:00:00 EST
New case law on signing releases in complex cases On July 7, in Ford Motor Company v. Buseman, the Superior Court reversed a trial court order denying a Motion for Summary Judgment in a products liability case resulting from a tragic car accident in which a Ford Explorer rolled over.

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.

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http://www.weknowinjurylaw.com/blog/new%2Dcase%2Dlaw%2Don%2Dsigning%2Dreleases%2Din%2Dcomplex%2Dcases%2Ecfm http://www.weknowinjurylaw.com/blog/new%2Dcase%2Dlaw%2Don%2Dsigning%2Dreleases%2Din%2Dcomplex%2Dcases%2Ecfm james.carroll@cclaw.cc (Blog Author)3443 Mon, 14 Jul 2008 08:00:00 EST
The importance of wearing your helmet while riding an ATV I know I've blogged about this before, but riders of motorcycles and ATV's (All Terrain Vehicles) should always, always, always wear a helmet.  I know in Pennsylvania the law says that it's not necessary, but some riders who are involved in accidents pay the ultimate price.

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.

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http://www.weknowinjurylaw.com/blog/the%2Dimportance%2Dof%2Dwearing%2Dyour%2Dhelmet%2Dwhile%2Driding%2Dan%2Datv%2Ecfm http://www.weknowinjurylaw.com/blog/the%2Dimportance%2Dof%2Dwearing%2Dyour%2Dhelmet%2Dwhile%2Driding%2Dan%2Datv%2Ecfm james.carroll@cclaw.cc (Blog Author)3376 Tue, 08 Jul 2008 08:00:00 EST
Federal Verdict Against GM in Rollover Lawsuit A jury found General Motors negligent in a rollover crash that killed a 14-year-old boy, awarding what may be a record amount to the parents who brought a lawsuit in federal court against the auto maker. The trial lasted two weeks.  

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.

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http://www.weknowinjurylaw.com/blog/federal%2Dverdict%2Dagainst%2Dgm%2Din%2Drollover%2Dlawsuit%2Ecfm http://www.weknowinjurylaw.com/blog/federal%2Dverdict%2Dagainst%2Dgm%2Din%2Drollover%2Dlawsuit%2Ecfm james.carroll@cclaw.cc (Blog Author)3374 Tue, 08 Jul 2008 08:00:00 EST
Skiier Injured Exiting Chairlift Did Not Assume Risk From JudicialView.com:

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)

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http://www.weknowinjurylaw.com/blog/skiier%2Dinjured%2Dexiting%2Dchairlift%2Ddid%2Dnot%2Dassume%2Drisk%2Ecfm http://www.weknowinjurylaw.com/blog/skiier%2Dinjured%2Dexiting%2Dchairlift%2Ddid%2Dnot%2Dassume%2Drisk%2Ecfm james.carroll@cclaw.cc (Blog Author)3373 Tue, 08 Jul 2008 08:00:00 EST
Former pro football player gets $1.1M for fall in store

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.

Aldridge v. Brookshire Brother's Grocery

To see the full report on this case, go to VerdictSearch.com
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http://www.weknowinjurylaw.com/blog/former%2Dpro%2Dfootball%2Dplayer%2Dgets%2D11m%2Dfor%2Dfall%2Din%2Dstore%2Ecfm http://www.weknowinjurylaw.com/blog/former%2Dpro%2Dfootball%2Dplayer%2Dgets%2D11m%2Dfor%2Dfall%2Din%2Dstore%2Ecfm james.carroll@cclaw.cc (Blog Author)3356 Sun, 06 Jul 2008 08:00:00 EST
Woman awarded $345k for injuries in rear-end automobile accident

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.

Garcia v. Quickcrete Ready Mix

To see the full report on this case, go to VerdictSearch.com
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http://www.weknowinjurylaw.com/blog/woman%2Dawarded%2D345k%2Dfor%2Dinjuries%2Din%2Drearend%2Dautomobile%2Daccident%2Ecfm http://www.weknowinjurylaw.com/blog/woman%2Dawarded%2D345k%2Dfor%2Dinjuries%2Din%2Drearend%2Dautomobile%2Daccident%2Ecfm james.carroll@cclaw.cc (Blog Author)3355 Sun, 06 Jul 2008 08:00:00 EST
Tech devices leave trail of evidence in trucking litigation Trucking companies are using a variety of hi-tech devices that are changing the face of trucking litigation.

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.

To see the full article, go here.]]>
http://www.weknowinjurylaw.com/blog/tech%2Ddevices%2Dleave%2Dtrail%2Dof%2Devidence%2Din%2Dtrucking%2Dlitigation%2Ecfm http://www.weknowinjurylaw.com/blog/tech%2Ddevices%2Dleave%2Dtrail%2Dof%2Devidence%2Din%2Dtrucking%2Dlitigation%2Ecfm james.carroll@cclaw.cc (Blog Author)3335 Thu, 03 Jul 2008 08:00:00 EST
Anti-Union Sentiment in Religious Institutions Here is an editorial in the Towanda Daily Review regariding Anti-Union sentiment in religious institutions.  It's written by Michael A. Milz, President of Scranton Diocese Association of Catholic Teachers (SDACT).  It's a good read and hits the point directly.

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.

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http://www.weknowinjurylaw.com/blog/antiunion%2Dsentiment%2Din%2Dreligious%2Dinstitutions%2Ecfm http://www.weknowinjurylaw.com/blog/antiunion%2Dsentiment%2Din%2Dreligious%2Dinstitutions%2Ecfm james.carroll@cclaw.cc (Blog Author)3331 Thu, 03 Jul 2008 08:00:00 EST
Top Pa. judge: Counties to get longer jury lists From The Associated Press:

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.

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http://www.weknowinjurylaw.com/blog/top%2Dpa%2Djudge%2Dcounties%2Dto%2Dget%2Dlonger%2Djury%2Dlists%2Ecfm http://www.weknowinjurylaw.com/blog/top%2Dpa%2Djudge%2Dcounties%2Dto%2Dget%2Dlonger%2Djury%2Dlists%2Ecfm james.carroll@cclaw.cc (Blog Author)3330 Thu, 03 Jul 2008 08:00:00 EST
Three more salmonella cases confirmed in N.J. From Philly.com:

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.

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http://www.weknowinjurylaw.com/blog/three%2Dmore%2Dsalmonella%2Dcases%2Dconfirmed%2Din%2Dnj%2Ecfm http://www.weknowinjurylaw.com/blog/three%2Dmore%2Dsalmonella%2Dcases%2Dconfirmed%2Din%2Dnj%2Ecfm james.carroll@cclaw.cc (Blog Author)3268 Mon, 30 Jun 2008 08:00:00 EST
Toymakers Frustrated by Patchwork of Safety Rules From The WashingtonPost.com:

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.

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http://www.weknowinjurylaw.com/blog/toymakers%2Dfrustrated%2Dby%2Dpatchwork%2Dof%2Dsafety%2Drules%2Ecfm http://www.weknowinjurylaw.com/blog/toymakers%2Dfrustrated%2Dby%2Dpatchwork%2Dof%2Dsafety%2Drules%2Ecfm james.carroll@cclaw.cc (Blog Author)3267 Mon, 30 Jun 2008 08:00:00 EST
Retailer Sues UL for Certifying Defective Heaters Platt Electrical Supply, Inc. sold electric in-wall heaters manufactured by Cadet Manufacturing Company. The heaters were tested and certified by Underwriters Laboratories ("UL"), a non-profit corporation that formulates safety standards for consumer products. In 1998, the Consumer Product Safety Commission noticed problems with the heaters, and then initiated a safety recall in 1999.

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.

See Judicial View for the full story.]]>
http://www.weknowinjurylaw.com/blog/retailer%2Dsues%2Dul%2Dfor%2Dcertifying%2Ddefective%2Dheaters%2Ecfm http://www.weknowinjurylaw.com/blog/retailer%2Dsues%2Dul%2Dfor%2Dcertifying%2Ddefective%2Dheaters%2Ecfm james.carroll@cclaw.cc (Blog Author)3266 Mon, 30 Jun 2008 08:00:00 EST
Teen injured in near-fatal crash gets $14.8M A teenager who was seriously injured in a car crash was awarded $14.8 million, and his mother, who was driving the car, recovered $270,000 on her bystander emotional distress claim. In 2005, Kyle Tilton, then 14, was in the passenger seat of a car driven by his mother, Charlotte Tilton, on State Route 62 in Yucca Valley. As she made a left turn, the car was broadsided on Kyle's side by a Southern California Gas Co. truck. Kyle suffered life-threatening injuries, including a collapsed lung and lacerations to his scalp, spleen and liver. He also suffered a head injury, which caused cognitive impairments. Southern California Gas Co. admitted liability, but contended that Kyle had made a good recovery.
Tilton v. Southern California Gas Co.
 
To see the full report of this case, go to VerdictSearch.com
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http://www.weknowinjurylaw.com/blog/teen%2Dinjured%2Din%2Dnearfatal%2Dcrash%2Dgets%2D148m%2Ecfm http://www.weknowinjurylaw.com/blog/teen%2Dinjured%2Din%2Dnearfatal%2Dcrash%2Dgets%2D148m%2Ecfm james.carroll@cclaw.cc (Blog Author)3265 Mon, 30 Jun 2008 08:00:00 EST
Athens attorney Maureen T. Beirne nominated by governor for county judgeship Congrats to Maureen.  She'll make a great Judge!

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

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http://www.weknowinjurylaw.com/blog/athens%2Dattorney%2Dmaureen%2Dt%2Dbeirne%2Dnominated%2Dby%2Dgovernor%2Dfor%2Dcounty%2Djudgeship%2Ecfm http://www.weknowinjurylaw.com/blog/athens%2Dattorney%2Dmaureen%2Dt%2Dbeirne%2Dnominated%2Dby%2Dgovernor%2Dfor%2Dcounty%2Djudgeship%2Ecfm james.carroll@cclaw.cc (Blog Author)3264 Mon, 30 Jun 2008 08:00:00 EST
Family of resident who died from sepsis awarded $2M A jury returned a $2 million verdict for the death of a 104-year-old nursing home resident caused by decubitis ulcers. Mary Adams died after eight weeks at Villa Valencia Healthcare Center, a skilled nursing facility in Laguna Hills. She was in the facility for physical therapy following hospitalization for a broken arm. While at Villa Villencia, she developed Stage IV decubitus ulcers on both heels. Her family sued the owner of the nursing home, claiming Adams was neglected there. They sought between $1 million and $5 million in damages. The jury's award included $1 million in punitive damages. According to defense counsel, the award will be reduced to $1.25 million per MICRA.
Adams v. Sunrise Senior Living Services Inc.
 
To see the full report on this case, go to VerdictSearch.com
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http://www.weknowinjurylaw.com/blog/family%2Dof%2Dresident%2Dwho%2Ddied%2Dfrom%2Dsepsis%2Dawarded%2D2m%2Ecfm http://www.weknowinjurylaw.com/blog/family%2Dof%2Dresident%2Dwho%2Ddied%2Dfrom%2Dsepsis%2Dawarded%2D2m%2Ecfm james.carroll@cclaw.cc (Blog Author)3129 Fri, 20 Jun 2008 08:00:00 EST
School liable for teen's car crash after going to drinking party A man who was rendered a quadriplegic as a teenager in a high-speed crash involving alcohol recovered nearly $13 million. Gabriel Maynoldi was 17 in 2001 when he and another teen crashed into a tree after leaving a high school party where they had been drinking. His family sued Archbishop Coleman F. Carroll High School and the Archdiocese of Miami because the principal and dance coach were at the party and were well aware of the students getting drunk in front of them. The principal and administrative officials also announced the party over the school public address system and allowed students to hand out flyers, with depictions of liquor bottles, that advertised the party. The jury awarded $55.8 million, but it was reduced because of comparative negligence finds against Maynoldi, his parents and non-party defendants. The school and Archdiocese were found 25 percent liable.
Maynoldi v. Archbishop Coleman F. Carroll High School Inc.
 
To see the full report of this case, go to VerdictSearch.com
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http://www.weknowinjurylaw.com/blog/school%2Dliable%2Dfor%2Dteens%2Dcar%2Dcrash%2Dafter%2Dgoing%2Dto%2Ddrinking%2Dparty%2Ecfm http://www.weknowinjurylaw.com/blog/school%2Dliable%2Dfor%2Dteens%2Dcar%2Dcrash%2Dafter%2Dgoing%2Dto%2Ddrinking%2Dparty%2Ecfm james.carroll@cclaw.cc (Blog Author)3127 Fri, 20 Jun 2008 08:00:00 EST
Health "Insurance Jive": Do you speak insurance? This YouTube video is funny....and sad...all at the same time.

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.

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http://www.weknowinjurylaw.com/blog/health%2Dinsurance%2Djive%2Ddo%2Dyou%2Dspeak%2Dinsurance%2Ecfm http://www.weknowinjurylaw.com/blog/health%2Dinsurance%2Djive%2Ddo%2Dyou%2Dspeak%2Dinsurance%2Ecfm james.carroll@cclaw.cc (Blog Author)3124 Fri, 20 Jun 2008 08:00:00 EST
U.S. Supreme Court deals with ERISA disability determinations From The New York Times:

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.

 

***We handle long term disabiity denials here at Carroll & Carroll, P.C.  If you receive a denial from a disability insruance company, the first thing you should do is call a lawyer experienced in appealing these denials.  Also, a good book to get is "Robbery Without a Gun" from attorney Ben Glass.  You can get the book here.]]>
http://www.weknowinjurylaw.com/blog/us%2Dsupreme%2Dcourt%2Ddeals%2Dwith%2Derisa%2Ddisability%2Ddeterminations%2Ecfm http://www.weknowinjurylaw.com/blog/us%2Dsupreme%2Dcourt%2Ddeals%2Dwith%2Derisa%2Ddisability%2Ddeterminations%2Ecfm james.carroll@cclaw.cc (Blog Author)3122 Fri, 20 Jun 2008 08:00:00 EST
Tomatoes linked to Pa. salmonella From Philly.com:

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.

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http://www.weknowinjurylaw.com/blog/tomatoes%2Dlinked%2Dto%2Dpa%2Dsalmonella%2Ecfm http://www.weknowinjurylaw.com/blog/tomatoes%2Dlinked%2Dto%2Dpa%2Dsalmonella%2Ecfm james.carroll@cclaw.cc (Blog Author)3105 Thu, 19 Jun 2008 08:00:00 EST
NURSING HOMES AND MANDATORY ARBITRATION From Philly.com:

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."

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http://www.weknowinjurylaw.com/blog/nursing%2Dhomes%2Dand%2Dmandatory%2Darbitration%2Ecfm http://www.weknowinjurylaw.com/blog/nursing%2Dhomes%2Dand%2Dmandatory%2Darbitration%2Ecfm james.carroll@cclaw.cc (Blog Author)3092 Wed, 18 Jun 2008 08:00:00 EST
Tractor-trailer rear-ender results in punitive damages award A driver was awarded $275,000 for several disc injuries he sustained when his coupe was rear-ened by a tractor-trailer. Thomas J. Ferranti sued Willie Lee Rowell Jr., who was driving for Martin Trucking. He claimed Rowell failed to keep a proper lookout. Ferranti sustained herniations in his neck and back. The jury found that Rowell showed reckless indifference to the interest of others. Of the award, $100,000 was for punitive damages against Rowell. Martin Trucking was not found vicariously liable for punitive damages.

Ferranti v. Martin Trucking, LLC

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

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http://www.weknowinjurylaw.com/blog/tractortrailer%2Drearender%2Dresults%2Din%2Dpunitive%2Ddamages%2Daward%2Ecfm http://www.weknowinjurylaw.com/blog/tractortrailer%2Drearender%2Dresults%2Din%2Dpunitive%2Ddamages%2Daward%2Ecfm james.carroll@cclaw.cc (Blog Author)3091 Wed, 18 Jun 2008 08:00:00 EST
Hotel guest injured when chair broke awarded $550,000 A jury awarded $550,000 to a man who injured his back and shoulder when he fell from a broken chair at a motel. John Karetas, a conductor with Norfolk Southern Inc., was staying at the McIntosh Inn in Allentown when the back of his chair broke, causing him to twist his back and fall on his shoulder. He sued the inn and his employer because he had taken a freight train from Harrisburg to Allentown, which required him to stay in the motel overnight. His lawyer argued that the back portion of the chair wasn't properly attached to the base. The jury found tMcIntosh Inn 70 percent liable and Norfolk Southern 30 liable.

Karetas v. Norfolk Southern Corp.

To see the full report, go to VerdictSearch.com

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http://www.weknowinjurylaw.com/blog/hotel%2Dguest%2Dinjured%2Dwhen%2Dchair%2Dbroke%2Dawarded%2D550000%2Ecfm http://www.weknowinjurylaw.com/blog/hotel%2Dguest%2Dinjured%2Dwhen%2Dchair%2Dbroke%2Dawarded%2D550000%2Ecfm james.carroll@cclaw.cc (Blog Author)3090 Wed, 18 Jun 2008 08:00:00 EST
New Case Law on stacking of underinsurance by employees in company owned vehicles In State Auto Property & Casualty insurance Co. v. Pro Design, P.C. today the District Court for the Middle District of Pennsylvania (Munley, J.) held that a corporation can avail itself of stacked underinsured motorist benefits even if it waived stacking on a single vehicle policy where it subsequently added two vehicles to the policy and never signed a new waiver of stacking for those additional vehicles. 

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.

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http://www.weknowinjurylaw.com/blog/new%2Dcase%2Dlaw%2Don%2Dstacking%2Dof%2Dunderinsurance%2Dby%2Demployees%2Din%2Dcompany%2Downed%2Dvehicles%2Ecfm http://www.weknowinjurylaw.com/blog/new%2Dcase%2Dlaw%2Don%2Dstacking%2Dof%2Dunderinsurance%2Dby%2Demployees%2Din%2Dcompany%2Downed%2Dvehicles%2Ecfm james.carroll@cclaw.cc (Blog Author)3077 Tue, 17 Jun 2008 08:00:00 EST
Motorcycle head injuries up sharply since Pa. changed law From Philly.com:

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."

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http://www.weknowinjurylaw.com/blog/motorcycle%2Dhead%2Dinjuries%2Dup%2Dsharply%2Dsince%2Dpa%2Dchanged%2Dlaw%2Ecfm http://www.weknowinjurylaw.com/blog/motorcycle%2Dhead%2Dinjuries%2Dup%2Dsharply%2Dsince%2Dpa%2Dchanged%2Dlaw%2Ecfm james.carroll@cclaw.cc (Blog Author)3061 Mon, 16 Jun 2008 08:00:00 EST
Pennsylvania Workers' Compensation Judge Book Just added this link to the Resource section of the website.  It's very useful for both attorneys who handle Pennsylvania Workers' Compensation cases as well as injured employees who want to learn more about what happens at workers' compensation hearings.

Check it out here.

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http://www.weknowinjurylaw.com/blog/pennsylvania%2Dworkers%2Dcompensation%2Djudge%2Dbook%2Ecfm http://www.weknowinjurylaw.com/blog/pennsylvania%2Dworkers%2Dcompensation%2Djudge%2Dbook%2Ecfm james.carroll@cclaw.cc (Blog Author)3052 Mon, 16 Jun 2008 08:00:00 EST
It pays for defendants to settle quickly and easily A study of court settlements of personal injury lawsuits against businesses estimated companies could save an average of $114,000 per claim, or $670,000 for severe injuries, by promptly settling cases instead of fighting them in court.

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

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http://www.weknowinjurylaw.com/blog/it%2Dpays%2Dfor%2Ddefendants%2Dto%2Dsettle%2Dquickly%2Dand%2Deasily%2Ecfm http://www.weknowinjurylaw.com/blog/it%2Dpays%2Dfor%2Ddefendants%2Dto%2Dsettle%2Dquickly%2Dand%2Deasily%2Ecfm james.carroll@cclaw.cc (Blog Author)3041 Sat, 14 Jun 2008 08:00:00 EST
Concierge gets $3.78M for fall at hotel A jury awarded $3.78 million to a woman who severely aggravated a back injury when she fell down a staircase at the Loews Miami Beach Hotel. Greimar Ruiz, who was a concierge at the hotel, claimed that her fall in 2004 aggravated a four-year-old lumbar fusion surgery. As a result, Ruiz is on morphine daily and she can no longer engage in activities such as basketball, waterskiing, jogging and in-line skating. The staircase lacked a handrail. The hotel conceded liability, but argued her fall wasn't related to her present condition. Of the award, she received $900,000 for future pain and suffering.


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

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http://www.weknowinjurylaw.com/blog/concierge%2Dgets%2D378m%2Dfor%2Dfall%2Dat%2Dhotel%2Ecfm http://www.weknowinjurylaw.com/blog/concierge%2Dgets%2D378m%2Dfor%2Dfall%2Dat%2Dhotel%2Ecfm james.carroll@cclaw.cc (Blog Author)3040 Sat, 14 Jun 2008 08:00:00 EST
Family awarded $5.1 for man killed by drunk driver at work site A jury awarded $5.1 million to the family of a man who was struck and killed by a drunk driver while working at a road construction site. Donald Lee Fincher Jr. hit Frank Claborn as he was providing security for a construction company that was renovating the West Sam Houston Toll Road. His counsel argued that Fincher was nearly three times over the legal blood-alcohol limit. The family claimed that Claborn was conscious and in pain for about an hour before he died. Fincher stipulated to liability. He offered a consent judgment, but Claborn's wife wouldn't make a counter offer and wouldn't consider a settlement without a trial.


Claborn v. Fincher

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http://www.weknowinjurylaw.com/blog/family%2Dawarded%2D51%2Dfor%2Dman%2Dkilled%2Dby%2Ddrunk%2Ddriver%2Dat%2Dwork%2Dsite%2Ecfm http://www.weknowinjurylaw.com/blog/family%2Dawarded%2D51%2Dfor%2Dman%2Dkilled%2Dby%2Ddrunk%2Ddriver%2Dat%2Dwork%2Dsite%2Ecfm james.carroll@cclaw.cc (Blog Author)3039 Sat, 14 Jun 2008 08:00:00 EST
Interactive Guide to Your Body Here is an interesting Interactive Guide to Your Body from the New York times.

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.

I try to tell my clients that spine surgery should be the last option.  I would say about half of my clients have truly successful outcome from spine surgery.  Another quarter have a good outcome but still suffer symptoms.  The last quarter have no change in their symptoms or become worse.]]>
http://www.weknowinjurylaw.com/blog/interactive%2Dguide%2Dto%2Dyour%2Dbody%2Ecfm http://www.weknowinjurylaw.com/blog/interactive%2Dguide%2Dto%2Dyour%2Dbody%2Ecfm james.carroll@cclaw.cc (Blog Author)2994 Wed, 11 Jun 2008 08:00:00 EST
New Federal case law on what is required in rejecting UIM insurance coverage

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.

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http://www.weknowinjurylaw.com/blog/new%2Dfederal%2Dcase%2Dlaw%2Don%2Dwhat%2Dis%2Drequired%2Din%2Drejecting%2Duim%2Dinsurance%2Dcoverage%2Ecfm http://www.weknowinjurylaw.com/blog/new%2Dfederal%2Dcase%2Dlaw%2Don%2Dwhat%2Dis%2Drequired%2Din%2Drejecting%2Duim%2Dinsurance%2Dcoverage%2Ecfm james.carroll@cclaw.cc (Blog Author)2980 Mon, 09 Jun 2008 08:00:00 EST
Federal Court Jury Awards 6.2 Million Dollars in TASER-Related Death From PRWeb.com:

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.

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http://www.weknowinjurylaw.com/blog/federal%2Dcourt%2Djury%2Dawards%2D62%2Dmillion%2Ddollars%2Din%2Dtaserrelated%2Ddeath%2Ecfm http://www.weknowinjurylaw.com/blog/federal%2Dcourt%2Djury%2Dawards%2D62%2Dmillion%2Ddollars%2Din%2Dtaserrelated%2Ddeath%2Ecfm james.carroll@cclaw.cc (Blog Author)2979 Mon, 09 Jun 2008 08:00:00 EST
Jury awards boy for hand degloving in crash

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

To get the full report on this case, go to VerdictSearch.com.]]>
http://www.weknowinjurylaw.com/blog/jury%2Dawards%2Dboy%2Dfor%2Dhand%2Ddegloving%2Din%2Dcrash%2Ecfm http://www.weknowinjurylaw.com/blog/jury%2Dawards%2Dboy%2Dfor%2Dhand%2Ddegloving%2Din%2Dcrash%2Ecfm james.carroll@cclaw.cc (Blog Author)2978 Mon, 09 Jun 2008 08:00:00 EST
Scalded tenant gets $2M from landlord

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

To get the full report on this case, go to VerdictSearch.com.]]>
http://www.weknowinjurylaw.com/blog/scalded%2Dtenant%2Dgets%2D2m%2Dfrom%2Dlandlord%2Ecfm http://www.weknowinjurylaw.com/blog/scalded%2Dtenant%2Dgets%2D2m%2Dfrom%2Dlandlord%2Ecfm james.carroll@cclaw.cc (Blog Author)2977 Mon, 09 Jun 2008 08:00:00 EST
Dough machine maker settles with baker for arm and hand injuries

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

To get the full report on this, go to VerdictSearch.com.]]>
http://www.weknowinjurylaw.com/blog/dough%2Dmachine%2Dmaker%2Dsettles%2Dwith%2Dbaker%2Dfor%2Darm%2Dand%2Dhand%2Dinjuries%2Ecfm http://www.weknowinjurylaw.com/blog/dough%2Dmachine%2Dmaker%2Dsettles%2Dwith%2Dbaker%2Dfor%2Darm%2Dand%2Dhand%2Dinjuries%2Ecfm james.carroll@cclaw.cc (Blog Author)2976 Mon, 09 Jun 2008 08:00:00 EST
Worker recovers for fall caused by 'junk brick'

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.

Hepner v. Global Glay

To get the full report on this case, go to VerdictSearch.com.
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http://www.weknowinjurylaw.com/blog/worker%2Drecovers%2Dfor%2Dfall%2Dcaused%2Dby%2Djunk%2Dbrick%2Ecfm http://www.weknowinjurylaw.com/blog/worker%2Drecovers%2Dfor%2Dfall%2Dcaused%2Dby%2Djunk%2Dbrick%2Ecfm james.carroll@cclaw.cc (Blog Author)2975 Mon, 09 Jun 2008 08:00:00 EST
New case law on obtaining UIM from your employer for a work related auto accident. On June 4, in Heller v. Pennsylvania League of Cities, the Commonwealth Court reversed the trial court's decision that it is a violation of public policy to exclude anyone eligible for workers' compensation benefits from also recovering underinsured motorist benefits. In Heller, the injured victim was in the course and scope of his employment in his employer's vehicle when a car accident occurred. The injured worker recovered the third party coverage and then sought UIM coverage on his employer's policy. There was an exclusion in the UIM provision of the employer's policy and instead of just ruling that the exclusion was not valid under the MVFRL, the trial court found that the exclusion violated public policy. The Commonwealth Court in this 2-1 decision holds that the exclusion does not violate public policy and reverses]]> http://www.weknowinjurylaw.com/blog/new%2Dcase%2Dlaw%2Don%2Dobtaining%2Duim%2Dfrom%2Dyour%2Demployer%2Dfor%2Da%2Dwork%2Drelated%2Dauto%2Daccident%2Ecfm http://www.weknowinjurylaw.com/blog/new%2Dcase%2Dlaw%2Don%2Dobtaining%2Duim%2Dfrom%2Dyour%2Demployer%2Dfor%2Da%2Dwork%2Drelated%2Dauto%2Daccident%2Ecfm james.carroll@cclaw.cc (Blog Author)2947 Fri, 06 Jun 2008 08:00:00 EST Pa. Church Volunteer Who Lost Leg in Accident Awarded $4 Million From InsuranceJournal.com:

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.

You can find contact information for Cohen & Feeley here.]]>
http://www.weknowinjurylaw.com/blog/pa%2Dchurch%2Dvolunteer%2Dwho%2Dlost%2Dleg%2Din%2Daccident%2Dawarded%2D4%2Dmillion%2Ecfm http://www.weknowinjurylaw.com/blog/pa%2Dchurch%2Dvolunteer%2Dwho%2Dlost%2Dleg%2Din%2Daccident%2Dawarded%2D4%2Dmillion%2Ecfm james.carroll@cclaw.cc (Blog Author)2916 Tue, 03 Jun 2008 08:00:00 EST
Another Step in Stopping Court Secrecy The U.S. Senate Judiciary Committee is working on the Sunshine in Litigation Act—a bill that  seeks to restore public accountability in the judicial system by restricting court secrecy on matters that affect public health and safety. Secrecy provisions are often part of legal settlements and they prevent people from finding out about dangerous products.

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."

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http://www.weknowinjurylaw.com/blog/another%2Dstep%2Din%2Dstopping%2Dcourt%2Dsecrecy%2Ecfm http://www.weknowinjurylaw.com/blog/another%2Dstep%2Din%2Dstopping%2Dcourt%2Dsecrecy%2Ecfm james.carroll@cclaw.cc (Blog Author)2915 Tue, 03 Jun 2008 08:00:00 EST
Spotlight on: Carla K. Weldy-- Paralegal Extraordinaire 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.

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http://www.weknowinjurylaw.com/blog/spotlight%2Don%2Dcarla%2Dk%2Dweldy%2Dparalegal%2Dextraordinaire%2Ecfm http://www.weknowinjurylaw.com/blog/spotlight%2Don%2Dcarla%2Dk%2Dweldy%2Dparalegal%2Dextraordinaire%2Ecfm james.carroll@cclaw.cc (Blog Author)2914 Tue, 03 Jun 2008 08:00:00 EST
3rd Circuit: Woman Cannot Be Fired for Having Abortion From Law.com:

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.

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http://www.weknowinjurylaw.com/blog/3rd%2Dcircuit%2Dwoman%2Dcannot%2Dbe%2Dfired%2Dfor%2Dhaving%2Dabortion%2Ecfm http://www.weknowinjurylaw.com/blog/3rd%2Dcircuit%2Dwoman%2Dcannot%2Dbe%2Dfired%2Dfor%2Dhaving%2Dabortion%2Ecfm james.carroll@cclaw.cc (Blog Author)2911 Tue, 03 Jun 2008 08:00:00 EST
Pennsylvania Supreme Court says high-cost loans violated Pa. banking laws From CentreDaily.com:

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.

 

***These companies act like they are merely doing a wonderful service to the poor of America so why should anyone be picking on them?!?!  Pay day loan companies, by the most part, are dishonest and pray on the uneducated and uninformed.  It's a trap for any unsuspecting person who just needs a few hundred dollars for rent until the next pay day.  Unfortunately, these people will be paying back thousands.  What a world we live in.....]]>
http://www.weknowinjurylaw.com/blog/pennsylvania%2Dsupreme%2Dcourt%2Dsays%2Dhighcost%2Dloans%2Dviolated%2Dpa%2Dbanking%2Dlaws%2Ecfm http://www.weknowinjurylaw.com/blog/pennsylvania%2Dsupreme%2Dcourt%2Dsays%2Dhighcost%2Dloans%2Dviolated%2Dpa%2Dbanking%2Dlaws%2Ecfm james.carroll@cclaw.cc (Blog Author)2899 Mon, 02 Jun 2008 08:00:00 EST
When a medical expert testifies "within a reasonable degree of medical certainty"...what does that really mean? In the case of Griffin v University of Pittsburgh, which is a May 19, 2008, Superior Court case, the court held that when a physician testifies that there was a 51-49% probability that the negligent act caused the injury, this was legally insufficient to offer an opinion to a "reasonable degree of medical certainty." Most medical experts spit out the phrase "to a reasonable degree of medical certainty" without actually defining its meaning or actually knowing what it truly means.  It does not mean "maybe" or "probably" or "might be" or any of those equivocal phrases.  However, it DOES not mean 100 % assurances.  The court doesn't actually give a specific percentage, but it has to be more than in this case.  Although I have no support for this, if a medical expert said they were more than 85% certain, I'd wager lunch that this would be enough for most appellate courts. 

Therefore, if you have a defense doctor who is a little less sure of the opinion he/she is offering, but also uses the magic language ask him/her to put a percentage on it. You might get lucky! The doctor could give some kind of split percentage as in this case and you can argue that based upon the Griffin case, the opinion is legally insufficient.

I've also posted this at the Pa Work Injury Law blog here.]]>
http://www.weknowinjurylaw.com/blog/when%2Da%2Dmedical%2Dexpert%2Dtestifies%2Dwithin%2Da%2Dreasonable%2Ddegree%2Dof%2Dmedical%2Dcertaintywhat%2Ddoes%2Dthat%2Dre%2Ecfm http://www.weknowinjurylaw.com/blog/when%2Da%2Dmedical%2Dexpert%2Dtestifies%2Dwithin%2Da%2Dreasonable%2Ddegree%2Dof%2Dmedical%2Dcertaintywhat%2Ddoes%2Dthat%2Dre%2Ecfm james.carroll@cclaw.cc (Blog Author)2898 Mon, 02 Jun 2008 08:00:00 EST
Plaintiffs Lawyer Lanier to Appeal Vioxx Reversal W. Mark Lanier, the Houston plaintiffs lawyer who won a $234.4 million jury verdict in Angleton in the nation's first Vioxx trial, isn't mincing words: Thursday's Texas appeals court opinion reversing a judgment in that suit is "judicial activism for corporate America."

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.

See the entire article here at Law.com.]]>
http://www.weknowinjurylaw.com/blog/plaintiffs%2Dlawyer%2Dlanier%2Dto%2Dappeal%2Dvioxx%2Dreversal%2Ecfm http://www.weknowinjurylaw.com/blog/plaintiffs%2Dlawyer%2Dlanier%2Dto%2Dappeal%2Dvioxx%2Dreversal%2Ecfm james.carroll@cclaw.cc (Blog Author)2847 Fri, 30 May 2008 08:00:00 EST
N.J. and Texas Courts Scrap Awards From Early Vioxx Cases From Law.com:

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.

See the full article here.  Has anyone read the newest Grisham novel, "The Appeal"?  If you have, you know why I ask after reading this story.]]>
http://www.weknowinjurylaw.com/blog/nj%2Dand%2Dtexas%2Dcourts%2Dscrap%2Dawards%2Dfrom%2Dearly%2Dvioxx%2Dcases%2Ecfm http://www.weknowinjurylaw.com/blog/nj%2Dand%2Dtexas%2Dcourts%2Dscrap%2Dawards%2Dfrom%2Dearly%2Dvioxx%2Dcases%2Ecfm james.carroll@cclaw.cc (Blog Author)2835 Thu, 29 May 2008 08:00:00 EST
New post on the Pa Work Injury Law Blog here.]]> http://www.weknowinjurylaw.com/blog/new%2Dpost%2Don%2Dthe%2Dpa%2Dwork%2Dinjury%2Dlaw%2Dblog%2Ecfm http://www.weknowinjurylaw.com/blog/new%2Dpost%2Don%2Dthe%2Dpa%2Dwork%2Dinjury%2Dlaw%2Dblog%2Ecfm james.carroll@cclaw.cc (Blog Author)2834 Thu, 29 May 2008 08:00:00 EST Playtex Sued Over Chemical's Use in Manufacture of Baby Bottles From Law.com:

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.

***This is another example of how lawsuits are making our country safer.  Doesn't anyone remember the Pinto and Ford's conduct in relation to the safety of that car?]]>
http://www.weknowinjurylaw.com/blog/playtex%2Dsued%2Dover%2Dchemicals%2Duse%2Din%2Dmanufacture%2Dof%2Dbaby%2Dbottles%2Ecfm http://www.weknowinjurylaw.com/blog/playtex%2Dsued%2Dover%2Dchemicals%2Duse%2Din%2Dmanufacture%2Dof%2Dbaby%2Dbottles%2Ecfm james.carroll@cclaw.cc (Blog Author)2828 Thu, 29 May 2008 08:00:00 EST
New case law on uninsurance when colliding with dirt bike In the case of Burdick v. Erie Insurance Group, the Superior Court held that an insurance policy that excludes uninsured benefits when the insured collides with off road vehicles, is against public policy and violates the Motor Vehicle Financial Responsibility Law.

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.

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http://www.weknowinjurylaw.com/blog/new%2Dcase%2Dlaw%2Don%2Duninsurance%2Dwhen%2Dcolliding%2Dwith%2Ddirt%2Dbike%2Ecfm http://www.weknowinjurylaw.com/blog/new%2Dcase%2Dlaw%2Don%2Duninsurance%2Dwhen%2Dcolliding%2Dwith%2Ddirt%2Dbike%2Ecfm james.carroll@cclaw.cc (Blog Author)2819 Wed, 28 May 2008 08:00:00 EST
Childhood lead exposure linked to criminal behavior, violence Childhood exposure to high lead levels leads to smaller brain mass and is linked to criminal behavior and violence, according to two new comprehensive studies.

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.

See the whole story here from the Baltimore Sun.]]>
http://www.weknowinjurylaw.com/blog/childhood%2Dlead%2Dexposure%2Dlinked%2Dto%2Dcriminal%2Dbehavior%2Dviolence%2Ecfm http://www.weknowinjurylaw.com/blog/childhood%2Dlead%2Dexposure%2Dlinked%2Dto%2Dcriminal%2Dbehavior%2Dviolence%2Ecfm james.carroll@cclaw.cc (Blog Author)2818 Wed, 28 May 2008 08:00:00 EST
New Case Law Defining "Midwifery" The Commonwealth Court in Goslin v. State Board of Medicine has ruled that practicing midwifery is not practicing surgery or medicine and that certified midwives and licensed nurse-midwives are not one and the same. As a result of the ruling, lay midwives are not subject to regulation by the State Board of Medicine.

Read the entire decision by the Court here.

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http://www.weknowinjurylaw.com/blog/new%2Dcase%2Dlaw%2Ddefining%2Dmidwifery%2Ecfm http://www.weknowinjurylaw.com/blog/new%2Dcase%2Dlaw%2Ddefining%2Dmidwifery%2Ecfm james.carroll@cclaw.cc (Blog Author)2814 Tue, 27 May 2008 08:00:00 EST
Why are confidentiality clauses in personal injury settlements dangerous? 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 (10th 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.

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http://www.weknowinjurylaw.com/blog/why%2Dare%2Dconfidentiality%2Dclauses%2Din%2Dpersonal%2Dinjury%2Dsettlements%2Ddangerous%2Ecfm http://www.weknowinjurylaw.com/blog/why%2Dare%2Dconfidentiality%2Dclauses%2Din%2Dpersonal%2Dinjury%2Dsettlements%2Ddangerous%2Ecfm james.carroll@cclaw.cc (Blog Author)2813 Tue, 27 May 2008 08:00:00 EST
Jury Awards $20.5 Million for Fatal Liposuction From Law.com:

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.

See the whole story here.]]>
http://www.weknowinjurylaw.com/blog/jury%2Dawards%2D205%2Dmillion%2Dfor%2Dfatal%2Dliposuction%2Ecfm http://www.weknowinjurylaw.com/blog/jury%2Dawards%2D205%2Dmillion%2Dfor%2Dfatal%2Dliposuction%2Ecfm james.carroll@cclaw.cc (Blog Author)2808 Tue, 27 May 2008 08:00:00 EST
New Case Law on stacking of uninsurance and underinsurance by Pennsylvania employees

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.

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http://www.weknowinjurylaw.com/blog/new%2Dcase%2Dlaw%2Don%2Dstacking%2Dof%2Duninsurance%2Dand%2Dunderinsurance%2Dby%2Dpennsylvania%2Demployees%2Ecfm http://www.weknowinjurylaw.com/blog/new%2Dcase%2Dlaw%2Don%2Dstacking%2Dof%2Duninsurance%2Dand%2Dunderinsurance%2Dby%2Dpennsylvania%2Demployees%2Ecfm james.carroll@cclaw.cc (Blog Author)2779 Fri, 23 May 2008 08:00:00 EST
Mandatory Arbitration Agreements in Healthcare In this morning's Patriot-News, PaAJ President Tim Riley contributes a guest column alerting readers to the increasing use arbitration agreements for medical treatment.

"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.

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http://www.weknowinjurylaw.com/blog/mandatory%2Darbitration%2Dagreements%2Din%2Dhealthcare%2Ecfm http://www.weknowinjurylaw.com/blog/mandatory%2Darbitration%2Dagreements%2Din%2Dhealthcare%2Ecfm james.carroll@cclaw.cc (Blog Author)2778 Fri, 23 May 2008 08:00:00 EST
City hit with $3.8M verdict for woman's pothole fall A jury awarded $3.8 million to a woman who sustained a fractured hip after stepping into a pothole at a Bronx intersection. Janie Utsey, 77 at the time of the October 2002 incident, alleged that the pothole developed after city workers failed to properly seal a prior gap in the road. She claimed that the gap reopened during the 17 months that preceded her injury. The city contended that the hole was connected to the cement platform of a bus stop and that, as such, it could not be filled in the conventional manner that Utsey had suggested. It also challenged Utsey's credibility by noting that she had provided differing accounts of the incident, but the jury was not swayed.
Get the full report on Utsey v. City N.Y. from Verdict Search here.
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http://www.weknowinjurylaw.com/blog/city%2Dhit%2Dwith%2D38m%2Dverdict%2Dfor%2Dwomans%2Dpothole%2Dfall%2Ecfm http://www.weknowinjurylaw.com/blog/city%2Dhit%2Dwith%2D38m%2Dverdict%2Dfor%2Dwomans%2Dpothole%2Dfall%2Ecfm james.carroll@cclaw.cc (Blog Author)2777 Fri, 23 May 2008 08:00:00 EST
Federal Preemption: Working Against Consumers The lawsuit filed by actor Dennis Quaid and his wife, Kimberly, after a hospital unintentionally gave their newborn twins the wrong dosage of a blood-thinning drug is being contested by a drug maker on the grounds that it is immune from liability.

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.

See the Las Vegas Sun for the entire editorial.]]>
http://www.weknowinjurylaw.com/blog/federal%2Dpreemption%2Dworking%2Dagainst%2Dconsumers%2Ecfm http://www.weknowinjurylaw.com/blog/federal%2Dpreemption%2Dworking%2Dagainst%2Dconsumers%2Ecfm james.carroll@cclaw.cc (Blog Author)2769 Thu, 22 May 2008 08:00:00 EST
Florida Regulator Lifts Allstate Suspension "Florida Insurance Commissioner Kevin McCarty ordered a stay of the suspension of the Allstate Companies' licenses to sell new business in the state. McCarty's decision comes as the result of Allstate's submission of an affidavit certifying that it has complied with Florida law by freely providing all documents (McKinsey Documents) requested by the Office of Insurance Regulation as part of its investigation of Allstate's business practices in Florida.

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.

See InsuranceJournal.com for the whole story.]]>
http://www.weknowinjurylaw.com/blog/florida%2Dregulator%2Dlifts%2Dallstate%2Dsuspension%2Ecfm http://www.weknowinjurylaw.com/blog/florida%2Dregulator%2Dlifts%2Dallstate%2Dsuspension%2Ecfm james.carroll@cclaw.cc (Blog Author)2768 Thu, 22 May 2008 08:00:00 EST
Man dies in ATV accident  

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.

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http://www.weknowinjurylaw.com/blog/man%2Ddies%2Din%2Datv%2Daccident%2Ecfm http://www.weknowinjurylaw.com/blog/man%2Ddies%2Din%2Datv%2Daccident%2Ecfm james.carroll@cclaw.cc (Blog Author)2724 Mon, 19 May 2008 08:00:00 EST
Three injured in vehicle rollover, two 'badly', in Ridgebury The Towanda Daily Review:

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."

****It appears that from the description of the two men being ejected from the vehicle, that they were not wearing their seat belts.  As this accident demonstrates, wearing your seat belt is such a simple act that could very welll save your life.]]>
http://www.weknowinjurylaw.com/blog/three%2Dinjured%2Din%2Dvehicle%2Drollover%2Dtwo%2Dbadly%2Din%2Dridgebury%2Ecfm http://www.weknowinjurylaw.com/blog/three%2Dinjured%2Din%2Dvehicle%2Drollover%2Dtwo%2Dbadly%2Din%2Dridgebury%2Ecfm james.carroll@cclaw.cc (Blog Author)2708 Fri, 16 May 2008 08:00:00 EST
Sloppy paint job to blame for worker's slip and fall A jury awarded more than $4.6 million to a construction worker who slipped on the overspray of a painting project. The suit dates to Aug. 28, 2006, when Thomas McAndrew worked at an outdoor construction site at John F. Kennedy International Airport, in Queens, New York. While traversing an area of cluttered boxes, McAndrew slipped on paint overspray that had been dampened by rainfall. He claimed that he sustained spinal herniations and a severe laceration of one finger. McAndrew sued the construction project's general contractor and a painting subcontractor, alleging that the boxes, the rain and a sloppy paint job created a hazard. The jury agreed, and it awarded McAndrew $4,663,231. McAndrew's wife also recovered $250,000 for her derivative loss.
McAndrew v. American Airlines Inc.
 
Order the full report on this case here at Verdict Search.
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http://www.weknowinjurylaw.com/blog/sloppy%2Dpaint%2Djob%2Dto%2Dblame%2Dfor%2Dworkers%2Dslip%2Dand%2Dfall%2Ecfm http://www.weknowinjurylaw.com/blog/sloppy%2Dpaint%2Djob%2Dto%2Dblame%2Dfor%2Dworkers%2Dslip%2Dand%2Dfall%2Ecfm james.carroll@cclaw.cc (Blog Author)2707 Fri, 16 May 2008 08:00:00 EST
28 Million Dollar Verdict For A Paralyzed 8 year Old In Philadelphia A Federal jury, in the United States District Court for the Eastern District of Pennsylvania, sitting in Philadelphia, returned a verdict of $28 Million Dollars for a paralyzed 8 year old boy.  The boy was a passenger in the back seat of a vehicle when the Defendant driver was distracted and veered off the road.

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.

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http://www.weknowinjurylaw.com/blog/28%2Dmillion%2Ddollar%2Dverdict%2Dfor%2Da%2Dparalyzed%2D8%2Dyear%2Dold%2Din%2Dphiladelphia%2Ecfm http://www.weknowinjurylaw.com/blog/28%2Dmillion%2Ddollar%2Dverdict%2Dfor%2Da%2Dparalyzed%2D8%2Dyear%2Dold%2Din%2Dphiladelphia%2Ecfm james.carroll@cclaw.cc (Blog Author)2704 Fri, 16 May 2008 08:00:00 EST
Texas Court Overturns Multimillion-Dollar Vioxx Verdict From Law.com:

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.

See the full article here.]]>
http://www.weknowinjurylaw.com/blog/texas%2Dcourt%2Doverturns%2Dmultimilliondollar%2Dvioxx%2Dverdict%2Ecfm http://www.weknowinjurylaw.com/blog/texas%2Dcourt%2Doverturns%2Dmultimilliondollar%2Dvioxx%2Dverdict%2Ecfm james.carroll@cclaw.cc (Blog Author)2698 Thu, 15 May 2008 08:00:00 EST
Bush Administration Uses Bureaucracy to Limit Lawsuits From Law.com:

"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."

See the full article here.]]>
http://www.weknowinjurylaw.com/blog/bush%2Dadministration%2Duses%2Dbureaucracy%2Dto%2Dlimit%2Dlawsuits%2Ecfm http://www.weknowinjurylaw.com/blog/bush%2Dadministration%2Duses%2Dbureaucracy%2Dto%2Dlimit%2Dlawsuits%2Ecfm james.carroll@cclaw.cc (Blog Author)2693 Wed, 14 May 2008 08:00:00 EST
The Defense Base Act Protects American Workers Injured in Iraq and Afghanistan I added an article to our Pennsylvania Workers' Compensation Blog about American workers who have been injured helping with the reconstruction of Iraq and Afghanistan.  You can see the article here.

You don't see this issue discussed too much in the news.  But thousands of American workers have been injured overseas.  If you know someone who has been injured overseas, contact us and we'll see if we can help them or get them to a specialist in this field.

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http://www.weknowinjurylaw.com/blog/the%2Ddefense%2Dbase%2Dact%2Dprotects%2Damerican%2Dworkers%2Dinjured%2Din%2Diraq%2Dand%2Dafghanistan%2Ecfm http://www.weknowinjurylaw.com/blog/the%2Ddefense%2Dbase%2Dact%2Dprotects%2Damerican%2Dworkers%2Dinjured%2Din%2Diraq%2Dand%2Dafghanistan%2Ecfm james.carroll@cclaw.cc (Blog Author)2688 Wed, 14 May 2008 08:00:00 EST
County liable for woman killed after making several 911 calls The family of a woman who was strangled by her boyfriend despite repeated and desperate 911 calls was awarded $2.7 million. Deborah Kirk's family sued Franklin County, claiming that 911 operators should have sent police officers to the scene after her first hang-up call. After Kirk called and then hung up, 911 called back and she said everything was fine. She called back 15 minutes later, but the call went dead after 90 seconds. Plaintiff's counsel argued that violent sounds could be heard in the background, and that should have alerted 911 to dispatch officers. However, it wasn't until a third call five minutes later, when Kirk said she'd been hit, that police were dispatched. Police officers knocked on the door, but there was no answer so they left. She was found dead the next day. The county argued that police were to blame for her death.
Estate of Kirk v. Franklin County Sheriff's Office
 
Get a full report on this case at Verdict Search here.
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http://www.weknowinjurylaw.com/blog/county%2Dliable%2Dfor%2Dwoman%2Dkilled%2Dafter%2Dmaking%2Dseveral%2D911%2Dcalls%2Ecfm http://www.weknowinjurylaw.com/blog/county%2Dliable%2Dfor%2Dwoman%2Dkilled%2Dafter%2Dmaking%2Dseveral%2D911%2Dcalls%2Ecfm james.carroll@cclaw.cc (Blog Author)2655 Sat, 10 May 2008 08:00:00 EST
Windham Fire Department 19 re-instated From The Daily Review:

The Windham Township Volunteer Fire Company, Department 19, is now back in service after the Windham Community Fire Department, Department 28, told the Windham Township Supervisors that it will be dissolving, according to Doug Soden, president of Department 19.

 
Soden said Department 19 was back in service as of 9 p.m. Wednesday.

He also said the 911 call center was informed that Department 19 was back in service, and that Department 19 is now back on the township's worker's compensation.

Soden reiterated that Department 19 is and has been ready to be in service.

Windham Township Supervisor Tom Guinan verified that there was an executive committee meeting Wednesday, and it was decided that Department 19 would go back in service for Windham Township.

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http://www.weknowinjurylaw.com/blog/windham%2Dfire%2Ddepartment%2D19%2Dreinstated%2Ecfm http://www.weknowinjurylaw.com/blog/windham%2Dfire%2Ddepartment%2D19%2Dreinstated%2Ecfm james.carroll@cclaw.cc (Blog Author)2641 Fri, 09 May 2008 08:00:00 EST
DEBUNKING "TORT REFORM" "Advocating solely for tort reform in the legislative arena does not get to the root of the medical liability crisis, according to Richard Boothman, JD, chief risk officer for the University of Michigan Health Systems:

"Study after study suggests that patients sue primarily because they feel they haven't gotten answers," Mr Boothman said, "They feel that no one is accountable when an error has caused injury. They also feel a huge sense of responsibility to protect others, to make sure what happened to them won't happen to other patients. Blaming lawyers and imposing caps and other hurdles to litigation simply doesn't get to what is actually driving patients to lawyers."

Read the entire article here.]]>
http://www.weknowinjurylaw.com/blog/debunking%2Dtort%2Dreform%2Ecfm http://www.weknowinjurylaw.com/blog/debunking%2Dtort%2Dreform%2Ecfm james.carroll@cclaw.cc (Blog Author)2633 Thu, 08 May 2008 08:00:00 EST
Woman gets $1M after car's hatchback lid collapsed on her head A jury awarded $1 million to a woman who was injured when the trunk hatch lid on her Subaru Outback collapsed on her head. Tammi Grumski, then 37, was pulling a bag of groceries from the rear of her car when the hatch lid fell, resulting in a head injury and cognitive deficits. She claimed that Suburban Buick Subaru in Pittsburgh negligently repaired the lid a week before the accident. Defense counsel conceded liability, but disputed the extent of her injuries. Grumski now has to wear prism glasses because of a vision impairment that made it difficult for her left eye to transition from focusing on objects at different distances. She claimed that she'll have to retire from her nursing job as she gets older due to the cognitive impairments.

Grumski v. Jones, Palmeiri & Saldutte Inc.

See Verdict Search here for full report on this case.

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http://www.weknowinjurylaw.com/blog/woman%2Dgets%2D1m%2Dafter%2Dcars%2Dhatchback%2Dlid%2Dcollapsed%2Don%2Dher%2Dhead%2Ecfm http://www.weknowinjurylaw.com/blog/woman%2Dgets%2D1m%2Dafter%2Dcars%2Dhatchback%2Dlid%2Dcollapsed%2Don%2Dher%2Dhead%2Ecfm james.carroll@cclaw.cc (Blog Author)2630 Thu, 08 May 2008 08:00:00 EST
Teen recovers after she's struck by car while crossing road A teen recovered $390,991 after she was struck by a car while crossing the road one winter evening. Zoe Malinoski was 13 years old when she was crossing the road and was struck by Sarah Fairbanks. Zoe sustained a fractured pelvis, a fractured hip, a fractured tooth, multiple skull fractures and bleeding on her brain. She spent two weeks in intensive care. She was left with cognitive defects and she continues to display memory problems in school. Defense counsel argued that Zoe darted out in front of the car, leaving Fairbanks no time to react. Zoe was also wearing dark clothing that winter evening. Zoe was found 25 percent liable, which reduced her $521,322 award. Of her award, $400,000 was for future pain and suffering.

The case was Malinoski v. Fairbanks.

Contact Verdict Search here for a full report on the case.

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http://www.weknowinjurylaw.com/blog/teen%2Drecovers%2Dafter%2Dshes%2Dstruck%2Dby%2Dcar%2Dwhile%2Dcrossing%2Droad%2Ecfm http://www.weknowinjurylaw.com/blog/teen%2Drecovers%2Dafter%2Dshes%2Dstruck%2Dby%2Dcar%2Dwhile%2Dcrossing%2Droad%2Ecfm james.carroll@cclaw.cc (Blog Author)2629 Thu, 08 May 2008 08:00:00 EST
Athens Township: Delayed emergency response leaves resident questioning readdressing From The Evening Times:

     "Lockhart Street resident Patricia Simmons is making sure everybody knows where her home is following a March 12 emergency in which responders couldn't find her house.  Near midnight on that night Simmons, who lives at 552 W. Lockhart St. in Athens Township, had begun to choke, and co-resident Bill Creedon called 911. After a while of waiting for Greater Valley EMS, Simmons, who could barely speak at that point, called 911 again herself.  "I could hardly stand it," said Simmons. "I picked up the phone and said, 'Where are you? I can't breathe.' It could have ended up in tragedy. I'm so close to the hospital, it should take only three minutes. It took 20 minutes to get to the hospital."  She added that when she arrived at the hospital she had a significant amount of water in her lungs.  Simmons's residence is the first house beyond the border of Athens Township on the south side of West Lockhart Street, while homes across the street are counted as a part of Sayre Borough up to Pennsylvania Avenue. "

I wonder....if this woman had died and it was due to the fact that the ambulance could not reach the residence in time due to the addressing issue, who would be responsible?]]>
http://www.weknowinjurylaw.com/blog/athens%2Dtownship%2Ddelayed%2Demergency%2Dresponse%2Dleaves%2Dresident%2Dquestioning%2Dreaddressing%2Ecfm http://www.weknowinjurylaw.com/blog/athens%2Dtownship%2Ddelayed%2Demergency%2Dresponse%2Dleaves%2Dresident%2Dquestioning%2Dreaddressing%2Ecfm james.carroll@cclaw.cc (Blog Author)2601 Tue, 06 May 2008 08:00:00 EST
"Frivolous Lawsuit" Commercials Distort The Truth Here's a post by Adam Gee of the Ziff Law Firm in Elmira, NY about frivolous lawsuit commercials.  Like Adam, I see them all the time.  You would be amazed at how much money the insurance industry and corporate America spends on commercials like that.

I agree with Adam that I almost NEVER, in the 13 years that I've been doing this, have seen a frivolous lawsuit filed.  To add to Adam's analysis, though, I believe we have to expand the definition of "frivolous."  To me, a frivolous lawsuit is one that has no basis or the plaintiff has no real injuries, either physical or psychological.

To the tort reform zombies, however, "frivolous" means any case where a lot of money is awarded to the plaintiff...even if the plaintiff was seriously injured by a negligent defendant (and every one agrees to these facts) it is still "frivolous" in the eyes of those zombies.  They don't believe people who are wronged should be compensated for pain and suffering.  Period.  They believe plaintiffs should get their wage loss and medical bills paid and that's it.  No pain and suffering money.  No punitive damages no matter how intentional the defendant's actions were.  Nothing.

And that's why I call them zombies.  The have no sympathy or empathy for other people.  That is, until they themselves are injured.  The zombies sing a different tune then.

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http://www.weknowinjurylaw.com/blog/frivolous%2Dlawsuit%2Dcommercials%2Ddistort%2Dthe%2Dtruth%2Ecfm http://www.weknowinjurylaw.com/blog/frivolous%2Dlawsuit%2Dcommercials%2Ddistort%2Dthe%2Dtruth%2Ecfm james.carroll@cclaw.cc (Blog Author)2597 Tue, 06 May 2008 08:00:00 EST
Ford pays $6.5M for SUV defect blamed for driver's death A jury awarded $6.5 million to the family of a man who was killed when his 1998 Ford Explorer sport utility vehicle flipped on an upstate parkway. The jury found that a defective roof-support system allowed the vehicle's roof to shred during the accident. The driver, Steven Motelson, 60 at the time of the July 2000 crash, sustained fatal injuries of his head as a result of the roof's failure. However, the jury rejected allegations that the vehicle's seat belts and speed-control systems failed, and, as such, it declined to hold Ford Motor Co. liable for the death of a juvenile passenger of the vehicle.
Motelson v. Ford Motor Co.
 
See the fulll report from VerdictSearch.com here.
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http://www.weknowinjurylaw.com/blog/ford%2Dpays%2D65m%2Dfor%2Dsuv%2Ddefect%2Dblamed%2Dfor%2Ddrivers%2Ddeath%2Ecfm http://www.weknowinjurylaw.com/blog/ford%2Dpays%2D65m%2Dfor%2Dsuv%2Ddefect%2Dblamed%2Dfor%2Ddrivers%2Ddeath%2Ecfm james.carroll@cclaw.cc (Blog Author)2588 Mon, 05 May 2008 08:00:00 EST
$38 Million Deal Reached for Minn. Bridge Collapse Victims Minnesota lawmakers reached agreement on a $38 million compensation package for victims of a deadly bridge collapse, culminating months of work to provide relief beyond the state's legal liability.

The deal struck in a joint committee of the House and Senate will offer everyone who was on the bridge up to $400,000, with an additional $12.6 million pool for the people who suffered the most severe injuries and losses. Thirteen people died in the Aug. 1 collapse and 145 were hurt.

"This is what we've been fighting for the whole time," Kimberly Brown, who suffered back, neck and knee injuries, told reporters Friday. "For everything that everybody's been through, thank God that they have figured out a way to help everybody."

The package is expected to be approved by the Legislature on Monday and sent off to Republican Gov. Tim Pawlenty, who called it "needed relief and support" for victims.

If victims agreed to take the money, they would have to sign away their rights to sue the state and other governmental entities in Minnesota. They would not be precluded from suing other parties in the collapse.

See the whole story from Law.com here.

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http://www.weknowinjurylaw.com/blog/38%2Dmillion%2Ddeal%2Dreached%2Dfor%2Dminn%2Dbridge%2Dcollapse%2Dvictims%2Ecfm http://www.weknowinjurylaw.com/blog/38%2Dmillion%2Ddeal%2Dreached%2Dfor%2Dminn%2Dbridge%2Dcollapse%2Dvictims%2Ecfm james.carroll@cclaw.cc (Blog Author)2586 Mon, 05 May 2008 08:00:00 EST
INJURY-PROOF CAR? From The New York Times:

"Volvo is bidding to create an injury-proof car by 2020. While that vehicle of the future may lack the self-awareness of the crime-fighting Trans Am in 1980s TV series Knight Rider, experts say it will be able to steer, brake and find out about the road ahead from within a vast electronic bumper. And if all goes according to plan, its driver and passengers will escape even the most serious crash unhurt."

And all the plaintiff's lawyers and insurance company lawyers are screaming "NOOOOOOOOO!!!!!!"  Actually, I kid.  I imagine 99% of lawyers who litigate motorvehicle crash cases and injury law are like me-- we would gladly give up the money they earn if it means that people's lives would no longer be turned upside down by the serious injury or death of a relative caused by an automobile accident.

See the whole story here.

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http://www.weknowinjurylaw.com/blog/injuryproof%2Dcar%2Ecfm http://www.weknowinjurylaw.com/blog/injuryproof%2Dcar%2Ecfm james.carroll@cclaw.cc (Blog Author)2566 Fri, 02 May 2008 08:00:00 EST
Patients often struggle for access to medical records From USA Today:

In 2001, Sandee Pingatore was determined to find out why her son, Troy, 29, had died in a California hospital while being treated for a drug overdose just hours after she had been told he was stable. But Pingatore was unable to get the hospital to produce a key medical record showing his blood pressure in his final hours.

When the record finally surfaced last year — too late under state law for Pingatore to file a civil lawsuit — it indicated Troy had been in mortal danger for several hours while awaiting care.

In 2006, another California woman, Beth Stover, ran into difficulties when she tried to get medical records to help her understand why her full-term baby had died in her womb.

When she got the records, she noticed something was missing: a strip-paper readout from a fetal monitoring device from Stover's last routine checkup. She eventually got a readout showing normal activity for a mother and her baby, but in a lawsuit she says she doubts it came from her records.

The hospitals involved — Fairchild Medical Center in Yreka, Calif., and Kaiser Foundation Hospital in Walnut Creek, Calif., respectively — deny any wrongdoing.

But the cases reflect a common complaint nationwide by patients and their families: It can be difficult to obtain medical records from hospitals and other treatment facilities after something goes wrong.

Under federal law, every patient or a designated representative has the right to see and copy the patient's medical records. However, missing or disputed records are the most common source of complaints on USA TODAY's Patient Safety website (patientsafety.usatoday.com), which was created in 2006 to give readers a venue to express concerns about inadequate medical care.

Although there are no statistics on such cases, disputes over medical records often are at the crux of malpractice lawsuits. Such claims often center on records that patients or their families, such as Pingatore and Stover, believe were purposely withheld by hospitals.

See the whole story here.

Because we exclusively handle injury cases at C&C Law, in almost every one of our cases, we need to obtain medical records.  Most of the time, it's really a simple exercise of having the client sign a HIPPA compliant authorization and mailing that to the particular medical provider with a request.  At that point, the provider will send an invoice.  Once that's paid, they mail the records.  However, some times there are issues.  Some times the records just can't be found.  But that's rare.  Only a few times have a doctor's office blatantly refused to provide records.  But a threat to report them and/or file suit against them usually solves the problem.

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http://www.weknowinjurylaw.com/blog/patients%2Doften%2Dstruggle%2Dfor%2Daccess%2Dto%2Dmedical%2Drecords%2Ecfm http://www.weknowinjurylaw.com/blog/patients%2Doften%2Dstruggle%2Dfor%2Daccess%2Dto%2Dmedical%2Drecords%2Ecfm james.carroll@cclaw.cc (Blog Author)2550 Thu, 01 May 2008 08:00:00 EST
What geographic area does C&C Law cover?
Athens, PA
Sayre, PA
Towanda, PA
Wyalusing, PA
Canton, PA
Troy, PA
Dushore, PA
LaPorte, PA
Eagles Mere, PA
Mansfield, PA
Wellsboro, PA
Montrose, PA
Great Bend, PA
New Milford, PA
Tunkhannock, PA
Blossburg, PA
Elkland, PA
Waverly, NY
Barton, NY
Owego, NY
Elmira, NY
Binghamton, NY
Horseheads, NY
Williamsport, PA]]>
http://www.weknowinjurylaw.com/blog/what%2Dgeographic%2Darea%2Ddoes%2Dcc%2Dlaw%2Dcover%2Ecfm http://www.weknowinjurylaw.com/blog/what%2Dgeographic%2Darea%2Ddoes%2Dcc%2Dlaw%2Dcover%2Ecfm james.carroll@cclaw.cc (Blog Author)2530 Wed, 30 Apr 2008 08:00:00 EST
New Pennsylvania Workers' Comp Blog!!! I've started a new blog focused solely on Pennsylvania Workers' Compensation and solely from the perspective of the injured employee.

I will mainly focus on how it affects individual claimants, but this blog will also be a good research tool for lawyers who practice Pa work comp. I'll provide new case law updates as well as the practical tips and hints that can help the practitioner. But most importantly, I'll try to provide simple answers to complicated questions for injured workers and their families. Being injured at work is never a fun thing to do. And going through the workers' compensation system in Pennsylvania can seem like a maze. But the attorneys and staff at Carroll & Carroll, P.C. are here to help the injured worker and their family work through this maze.

You can find it at PaWorkInjury.blogspot.com.

 

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http://www.weknowinjurylaw.com/blog/new%2Dpennsylvania%2Dworkers%2Dcomp%2Dblog%2Ecfm http://www.weknowinjurylaw.com/blog/new%2Dpennsylvania%2Dworkers%2Dcomp%2Dblog%2Ecfm james.carroll@cclaw.cc (Blog Author)2507 Mon, 28 Apr 2008 08:00:00 EST
Carpenter recovers nearly $40M for paralyzing work injury A federal jury awarded nearly $40 million to a carpenter who sustained a paralyzing injury while working at Manhattan's South Ferry Terminal. Liability was not contested in the suit, which stemmed from an August 2006 incident in which Dmitry Okraynets, then 31, was struck by an 800-pound unit of construction forms that fell off of a wall. Okraynets, permanently paraplegic, claimed that a spinal complication could lead to paralysis of his upper limbs. He contended that he will require lifelong assistance and medical care. The jury found that Okraynets' damages totaled $39,706,444, and it also awarded $5 million to Okraynets' wife, for her loss of services.

See a full report on the case at VerdictSearch.com.

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http://www.weknowinjurylaw.com/blog/carpenter%2Drecovers%2Dnearly%2D40m%2Dfor%2Dparalyzing%2Dwork%2Dinjury%2Ecfm http://www.weknowinjurylaw.com/blog/carpenter%2Drecovers%2Dnearly%2D40m%2Dfor%2Dparalyzing%2Dwork%2Dinjury%2Ecfm james.carroll@cclaw.cc (Blog Author)2505 Mon, 28 Apr 2008 08:00:00 EST
OSRAM's Towanda plant sold to Austrian company I posted this news item in the "News" section of the web site here.  Whenever we have a major plant closing I often get calls from people who have current workers' compensation cases with the company being sold.  The employees are usually concerned about the continuation of their benefits, etc.

99% of the time, though, you don't have to worry about your benefits stopping or being effected at all by the sale.  Obviously, though, you job (assuming you're still working either full or light duty) might be affected.  So, if your company is sold and you are laid off but you also have an open workers' compensation case, make sure you talk to an experienced workers' comp. lawyer to review your options.

There's more information on the sale here.

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http://www.weknowinjurylaw.com/blog/osrams%2Dtowanda%2Dplant%2Dsold%2Dto%2Daustrian%2Dcompany%2Ecfm http://www.weknowinjurylaw.com/blog/osrams%2Dtowanda%2Dplant%2Dsold%2Dto%2Daustrian%2Dcompany%2Ecfm james.carroll@cclaw.cc (Blog Author)2471 Thu, 24 Apr 2008 08:00:00 EST
US Supreme Court to Hear Argument on Long Term Disability Appeals From The Christian Science Monitor:

"On Wednesday, the justices are set to examine how judges should approach policyholder disputes involving companies that both evaluate and pay medical disability claims administered under a federal retirement income law.

Do such companies operate in a conflict of interest between caring for their policyholders and enriching their shareholders? If such a conflict exists, how rigorously should federal judges examine decisions to deny benefits?  Federal appeals courts are sharply divided on how to answer those questions.

In its appeal to the Supreme Court, MetLife says that a company that both evaluates and pays claims does not necessarily operate under a conflict of interest. Lawyers for the company say that Congress in passing the Employee Retirement Income Security Act (ERISA) authorized companies like MetLife to both evaluate and pay claims.

Lawyers for Glenn say MetLife's business operations are a classic example of conflict of interest. "When an umpire bets on the outcome of a game he is refereeing, he has a conflict of interest," writes E. Joshua Rosenkranz, a lawyer for Glenn, in his brief.

"MetLife is equally conflicted when it decides whether a beneficiary is entitled to benefits. If MetLife answers 'yes,' then it is the one who has to pay; the beneficiary's gain is MetLife's loss," Mr. Rosenkranz writes.

Judges should take this conflict into account when reviewing benefits denials and should apply "especially careful scrutiny" to ensure that financial incentives have not tainted a company's fiduciary duty to its policyholders, he says."

We've handled many long term disability appeals at C&C Law.  And I can tell you from first hand experience that even with the "heightened standard of review" that the system is stacked against the disabled.  These cases are very difficult to win on appeal in Federal Court.  They are not like normal litigation.  Before you even engage in the initial "in-house" appeal to the insurance company for its first denial, you must retain a competent lawyer that is experienced in litigating long term disability cases under ERISA.  There are too many pitfalls to go into here in a simple blog.

But, if you have any questions, get this book here, then call us and we can review your case for free.

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http://www.weknowinjurylaw.com/blog/us%2Dsupreme%2Dcourt%2Dto%2Dhear%2Dargument%2Don%2Dlong%2Dterm%2Ddisability%2Dappeals%2Ecfm http://www.weknowinjurylaw.com/blog/us%2Dsupreme%2Dcourt%2Dto%2Dhear%2Dargument%2Don%2Dlong%2Dterm%2Ddisability%2Dappeals%2Ecfm james.carroll@cclaw.cc (Blog Author)2463 Wed, 23 Apr 2008 08:00:00 EST
Heart risk in ADHD drugs? From Philly.com:

"Millions of children taking drugs for attention deficit hyperactivity disorder should be checked for heart problems, the American Heart Association said yesterday, a recommendation that also might identify more youngsters with cardiac disorders.

Ritalin, Adderall, Concerta, and other stimulants commonly prescribed to treat ADHD can increase blood pressure and heart rate. While not a problem for the vast majority of patients, they can lead to life-threatening conditions and even sudden cardiac death in those with heart conditions."

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http://www.weknowinjurylaw.com/blog/heart%2Drisk%2Din%2Dadhd%2Ddrugs%2Ecfm http://www.weknowinjurylaw.com/blog/heart%2Drisk%2Din%2Dadhd%2Ddrugs%2Ecfm james.carroll@cclaw.cc (Blog Author)2456 Tue, 22 Apr 2008 08:00:00 EST
Most Common Fair Labor Standards Act Violations Although we don't practice wage and hour law at Carroll & Carroll, P.C., we often get questions from current workers' compensation clients regarding issues involving employer practices that might violate state and Federal law.

In the library section of the site, I've posted an article describing the most common violations of the Fair Labor Standards Act.  Review this to see if your employer does any of these things.  If so, contact us and we'll get you hooked up with an attorney who is an expert in this area of the law and can answer your questions.

See the article here.

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http://www.weknowinjurylaw.com/blog/most%2Dcommon%2Dfair%2Dlabor%2Dstandards%2Dact%2Dviolations%2Ecfm http://www.weknowinjurylaw.com/blog/most%2Dcommon%2Dfair%2Dlabor%2Dstandards%2Dact%2Dviolations%2Ecfm james.carroll@cclaw.cc (Blog Author)2448 Mon, 21 Apr 2008 08:00:00 EST
Allstate Postings Don't Include Catastrophe Claim Information From NOLO.com:

"The 150,000 pages of documents that Allstate Corp. posted on its Web site in response to a growing public relations storm contain mind-numbing documents on processing auto insurance and homeowners claims, but nothing about the issue that is most important to people hit by hurricanes Katrina and Rita: how the company handles catastrophe claims. 'We haven't seen any 'cat' documents,' said New Orleans lawyer Paul Miniclier. 'There are many missing documents.'

A week ago, the suburban Chicago company posted reams of materials produced in the 1990s with the consulting firm McKinsey & Co. about overhauling Allstate's claims-handling practices. The company says it took the extraordinary step to dispel myths about the so-called 'McKinsey documents,' because critics of the company unfairly took snippets of the documents out of context."

The documents were posted the same day a Florida judge said that that state's insurance commissioner could lawfully suspend Allstate's license to sell new policies until the company complied with a subpoena about its business practices. The posting also comes a month before New Mexico attorney David Berardinelli releases a consumer-oriented book, "From Good Hands to Boxing Gloves: The Dark Side of Insurance," about Allstate's quest to become more profitable to the detriment of its customers, which he wrote after seeing some of the McKinsey documents in a car wreck case.

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http://www.weknowinjurylaw.com/blog/allstate%2Dpostings%2Ddont%2Dinclude%2Dcatastrophe%2Dclaim%2Dinformation%2Ecfm http://www.weknowinjurylaw.com/blog/allstate%2Dpostings%2Ddont%2Dinclude%2Dcatastrophe%2Dclaim%2Dinformation%2Ecfm james.carroll@cclaw.cc (Blog Author)2438 Mon, 21 Apr 2008 08:00:00 EST
Editorial On the Dangers of Federal Pre-emption From The New York Times:

"The pharmaceutical industry and its good friends in the Bush administration are working hard to prevent consumers from filing damage suits for injuries caused by federally approved drug products. They may soon get a helping hand from the Supreme Court, which has already barred many suits over faulty medical devices.

"If this perverse legal doctrine, known as federal pre-emption, continues to spread, the public will be deprived of a vital tool for policing companies and unearthing documents that reveal their machinations."

See the whole editorial here.]]>
http://www.weknowinjurylaw.com/blog/editorial%2Don%2Dthe%2Ddangers%2Dof%2Dfederal%2Dpreemption%2Ecfm http://www.weknowinjurylaw.com/blog/editorial%2Don%2Dthe%2Ddangers%2Dof%2Dfederal%2Dpreemption%2Ecfm james.carroll@cclaw.cc (Blog Author)2393 Tue, 15 Apr 2008 08:00:00 EST
Medical Malpractice Lawsuits in Pennsylvania Down Again for 2007 From PennLive.com:

"The number of medical malpractice lawsuits in Pennsylvania declined again in 2007, according to statistics released today.

There were 1,617 medical malpractice lawsuits filed in 2007, according to the state Supreme Court. That's down from 1,693 in 2006 and 2,903 in 2002, the year before legal changes intended to prevent frivolous lawsuits took effect.

The legal changes require lawyers filing malpractice cases to obtain a certificate of merit from a medical professional, saying the medical care that prompted the lawsuits was outside acceptable standards.

They also put an end to "venue shopping," a practice by which lawyers who file malpractice cases would try to put them in front of juries in Philadelphia, where jurors are known for ruling against doctors and hospitals.

In 2007, 153 medical malpractice cases were heard by juries, which ruled in favor of the health care provider about 83 percent of the time, the court said.

In a news release, Chief Justice Ronald Castille said the data show the decline in medical malpractice cases is not temporary and that they reflect a sustained response to the 2003 changes."

 

You can see a county by county chart for malpractice lawsuits filed for 2007, here, including the outcome of each case and the size of the jury award, if any.  Of all the cases tried, 82.7 percent were defense verdicts, meaning the doctor or hospital won.  So I don't want to hear ANYONE saying there is a medical malpractice crisis EVER AGAIN.]]>
http://www.weknowinjurylaw.com/blog/medical%2Dmalpractice%2Dlawsuits%2Din%2Dpennsylvania%2Ddown%2Dagain%2Dfor%2D2007%2Ecfm http://www.weknowinjurylaw.com/blog/medical%2Dmalpractice%2Dlawsuits%2Din%2Dpennsylvania%2Ddown%2Dagain%2Dfor%2D2007%2Ecfm james.carroll@cclaw.cc (Blog Author)2392 Tue, 15 Apr 2008 08:00:00 EST
Allstate Gives Up McKinsey Documents In Kentucky From The Lexington Herald-Leader:

Allstate Corp. on Friday released thousands of documents that have been cited by trial lawyers across the country, including in Kentucky, as a blueprint for fraud.

The release came the same day that an appeals court in Florida ruled that the state's insurance regulators can stop Allstate's companies from writing new policies in the state until it complies with subpoenas for documents.

Included in those subpoenas were the now-released "McKinsey & Co." documents, prepared by the McKinsey & Co. consulting firm to help Allstate overhaul the way it handled claims.

The Florida Office of Insurance Regulation suspended Allstate from writing new policies in January because it did not supply pricing information requested in an earlier subpoena.

The state wants documents to determine why Allstate's property insurance rates had not dropped after a state law designed to reduce premiums that rose due to hurricanes in 2004 and 2005.

Allstate, based in Northbrook, Ill., was able to keep writing new business as it appealed. The state, however, said the company must immediately comply after Friday's decision by the 1st District Court of Appeal in Tallahassee, pending a motion for a rehearing within 15 days.

"They have blatantly and flagrantly disregarded the law as has been pointed out in the 1st District Court opinions," Insurance Commissioner Kevin McCarty said. "If you look at what the court says as it goes through the history, they did not take this process seriously."

Allstate had turned over some of the McKinsey documents, according to media reports, but McCarty told the South Florida Sun-Sentinel on Friday that Allstate is "far from" finished complying with the requests.

An Allstate spokesman told the newspaper that the company will continue doing business in the state and plans to ask the court to reconsider its decision.

The McKinsey documents, which can now be viewed at http://media.allstate.com/media/terms_of_service, were cited during a high-profile trial in Lexington last year.

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http://www.weknowinjurylaw.com/blog/allstate%2Dgives%2Dup%2Dmckinsey%2Ddocuments%2Din%2Dkentucky%2Ecfm http://www.weknowinjurylaw.com/blog/allstate%2Dgives%2Dup%2Dmckinsey%2Ddocuments%2Din%2Dkentucky%2Ecfm james.carroll@cclaw.cc (Blog Author)2386 Mon, 14 Apr 2008 08:00:00 EST
FDA: Same Salmonella strain in recalled cereal sickens 23 people From CNN.com:

MINNEAPOLIS, Minnesota (AP) -- At least 23 people in 14 states have been sickened by the same strain of salmonella found in two breakfast cereals recalled by Malt-O-Meal, the federal Food and Drug Administration said Saturday.

Officials in Minnesota are investigating whether a case in that state might be linked to the cereals produced by the Minneapolis-based company, the state health department said.

Malt-O-Meal voluntarily recalled its unsweetened Puffed Rice and Puffed Wheat cereals April 5 after finding salmonella contamination during routine testing. The affected bags were produced in the past 12 months in Northfield, Minnesota.

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http://www.weknowinjurylaw.com/blog/fda%2Dsame%2Dsalmonella%2Dstrain%2Din%2Drecalled%2Dcereal%2Dsickens%2D23%2Dpeople%2Ecfm http://www.weknowinjurylaw.com/blog/fda%2Dsame%2Dsalmonella%2Dstrain%2Din%2Drecalled%2Dcereal%2Dsickens%2D23%2Dpeople%2Ecfm james.carroll@cclaw.cc (Blog Author)2385 Mon, 14 Apr 2008 08:00:00 EST
Court Denies Insurer's Motion for Summary Judgment From the Pennsylvania Association For Justice website:

On April 4, in McCrory v. State Farm Mut. Auto. Ins. Co., the Western District of Pennsylvania denied State Farm's Motion for Summary Judgment in a bad faith case arising out of the handling of an underinsured motorist claim where the insurance company made a blanket denial of any UIM coverage and the ultimate arbitration award was $650,000. 

The underlying third party case had $200,000 in potential total coverage and settled for $150,000.  After providing a credit up to the full policy limits, McCrory demand an additional $100,000 in underinsured motorist coverage and State Farm made a blanket denial that the claim was not worth more than $200,000.  This was without having fully assigned a value to the total amount of the claim or reviewing all of the medical records, etc. 

The court notes that "it simply made a blanket, conclusory, and convenient statement that the claim was worth less than $200,000."  Under the facts and evidence, the court writes that, "[a] reasonable juror could conclude that these facts prove that State Farm's goal was not to objectively and fairly determine the validity and value of McCrory's claim, but to ensure that whatever merit is had, her claim was valued below its $200,000 coverage trigger."  Thus, even with the higher standard of proof of clear and convincing evidence the Motion is denied and the court leaves the issue of bad faith for a juror to decide.

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http://www.weknowinjurylaw.com/blog/court%2Ddenies%2Dinsurers%2Dmotion%2Dfor%2Dsummary%2Djudgment%2Ecfm http://www.weknowinjurylaw.com/blog/court%2Ddenies%2Dinsurers%2Dmotion%2Dfor%2Dsummary%2Djudgment%2Ecfm james.carroll@cclaw.cc (Blog Author)2384 Mon, 14 Apr 2008 08:00:00 EST
Another victory for drug manufacturers in the preemption battle In a significant victory for drug manufacturers, the 3rd U.S. Circuit Court of Appeals has ruled that the makers of Paxil and Zoloft cannot be sued for failing to warn of a risk of suicide because the Food & Drug Administration has explicitly refused to order such warnings. Voting 2-1 in a pair of cases where the lower courts issued conflicting rulings, the 3rd Circuit found that such lawsuits must be pre-empted because they directly conflict with action already taken by the FDA.

See the story here.

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http://www.weknowinjurylaw.com/blog/another%2Dvictory%2Dfor%2Ddrug%2Dmanufacturers%2Din%2Dthe%2Dpreemption%2Dbattle%2Ecfm http://www.weknowinjurylaw.com/blog/another%2Dvictory%2Dfor%2Ddrug%2Dmanufacturers%2Din%2Dthe%2Dpreemption%2Dbattle%2Ecfm james.carroll@cclaw.cc (Blog Author)2345 Thu, 10 Apr 2008 08:00:00 EST
The Importance of Pennsylvania's Insurance Commissioner The person filling the job of Pennsylvania's Insurance Commissioner isn't a topic that is often discussed around the dinner table or at the coffee counter.  However, it is a very important issue and affects all of us.  For many years I've complained that the Insurance Commissioner, who is tasked with regulating the insurance industry in Pennsylvania, is always FROM the insurance industry.  In most instances, in my opinion, it appears the regulatory opinions that come from the Insurance Commissioner's office (which dictates what insurance companies can and cannot do) favors insurance companies and not us consumers.

The following link is to an editorial in the Towanda Daily Review that addresses this issue.  Finally we have a consumer advocate in the office, Joe Ario, who was appointed by Gov. Rendell.  Hopefully, the Governor's office can wade through the politics and get Mr. Ario permanently appointed so, finally, the Insurance Commissioner is not part of the problem.

See the editorial here.

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http://www.weknowinjurylaw.com/blog/the%2Dimportance%2Dof%2Dpennsylvanias%2Dinsurance%2Dcommissioner%2Ecfm http://www.weknowinjurylaw.com/blog/the%2Dimportance%2Dof%2Dpennsylvanias%2Dinsurance%2Dcommissioner%2Ecfm james.carroll@cclaw.cc (Blog Author)2329 Tue, 08 Apr 2008 08:00:00 EST
New Case Law on Negligence Per Se The link below is to a case from the United States Court of Appeals for the Third Circuit.  The Court held that it is reversible error when the trial judge refused to give the jury an instruction on a negligence per se charge despite the defendant pleading guilty to a motor vehicle violation.

There are certain actions that a defendant can do that automatically makes his actions negligent.  In this case, when the defendant's admitted motor vehicle violations caused the automobile accident, the trial judge should have instructed the jury that this amounted to negligence, pure and simple.  So, the jury did not have to make that decision.  Obviously, the trial judge did not do that so the plaintiff's attorney appealed and won.  Fortunately for the plaintiff, they can retry the case and get a second bite at the apple.

You can read the entire decision here.

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http://www.weknowinjurylaw.com/blog/new%2Dcase%2Dlaw%2Don%2Dnegligence%2Dper%2Dse%2Ecfm http://www.weknowinjurylaw.com/blog/new%2Dcase%2Dlaw%2Don%2Dnegligence%2Dper%2Dse%2Ecfm james.carroll@cclaw.cc (Blog Author)2328 Tue, 08 Apr 2008 08:00:00 EST
New Pa. Supreme Court Decision re. Paying for Van for Injured Worker In an issue of first impression, the Pennsylvania Supreme Court found that a van modified to meet a quadriplegic claimant's needs may fall within the definition of an "orthopedic appliance" that an employer is obligated to pay for.

See the opinion in the case of Griffiths v. WCAB here.

To get the other side of the argument, see the dissenting opinion here.

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http://www.weknowinjurylaw.com/blog/new%2Dpa%2Dsupreme%2Dcourt%2Ddecision%2Dre%2Dpaying%2Dfor%2Dvan%2Dfor%2Dinjured%2Dworker%2Ecfm http://www.weknowinjurylaw.com/blog/new%2Dpa%2Dsupreme%2Dcourt%2Ddecision%2Dre%2Dpaying%2Dfor%2Dvan%2Dfor%2Dinjured%2Dworker%2Ecfm james.carroll@cclaw.cc (Blog Author)2252 Mon, 31 Mar 2008 08:00:00 EST
Walmart: The Evil Empire Recent developments concerning self-funded employee benefit plans regulated by ERISA have created hidden dangers regarding recovery rights that must be addressed in accident and injury cases.

I've blogged about this case before but there's been some recent developments in the appeal of this sad case.

In the case of Administrative Committee of the Wal-Mart Stores, Inc. Associates' Health and Welfare Plan, vs. James A. Shank, as Trustee of Deborah J. Shank Irrevocable Trust, et al(Case No. 06-3531, Aug. 31, 2007), the United States Court of Appeals for Eighth Circuit addressed the recovery rights of an employee health insurance plan, possibly signifying the emergence of a new wave of health care reimbursement litigation.

The relevant facts of the Wal-Mart case are as follows: Deborah J. Shank was employed by Wal-Mart when she sustained severe injuries in a motor vehicle accident unrelated to her employment. However, as an employee of Wal-Mart, she participated in the Wal-Mart Associates' Health and Welfare Plan. Mrs. Shank's injuries from the accident left her brain-injured and incompetent requiring future medical treatment and nursing home care. The case settled for $700,000.00. After legal fees and costs, Mrs. Shank's net settlement proceeds of $417,000.00 were placed into a Supplemental Needs Trust to provide for her care. Following settlement, the Committee of the Wal-Mart Stores, Inc. Associate's Health and Welfare Plan brought suit against Deborah Shank, James Shank as Trustee, and the Special Needs Trust itself, to recover, in full, the amount of $469,216.00 paid on the Shank's behalf for medical expenses under section 502(a)(3) of ERISA.  See more on the facts surrounding the case here.

It is noteworthy that the Wal-Mart Plan contained subrogation and reimbursement clauses which purported to grant the Committee first priority over any judgment or settlement received relating to the accident. The relevant portions of the plan were as follows:

The Plan has the right to . . . recover or subrogate 100 percent of the benefits paid by the Plan on your behalf. . . to the extent of. . . [a]ny judgment, settlement, or any payment made or to be made, relating to the accident . . . These rights apply regardless of whether such payments are designated as payment for . . . [m]edical benefits [or] [w]hether the participant has been made whole (i.e., fully compensated for his/her injuries). . . .The Plan has first priority with respect to its right to reduction, reimbursement and subrogation [Emphasis added].

The U.S. District Court ruled in favor of Wal-Mart and the Court of Appeals affirmed, allowing a full recovery of the medical expenses against the Supplemental Needs Trust. The Court declined to apply the "made whole doctrine" or the Alhborn "pro-rata doctrine" to the claim for reimbursement holding as follows:

ERISA's purposes of upholding the integrity of written plans and protecting the interest and expectations of all participants and beneficiaries are best served by enforcing the Committee's contractual right to reimbursement. We thus hold that such relief is "appropriate" under section 502(a)(3). For these reasons, the judgment of the district court is affirmed.

Imagine the same facts, but with an even larger amount of medical expenses. Could such all-encompassing recovery language devour the entire amount of our client's settlement, including counsel fees? Therefore, it is critical that, as personal injury attorneys, we inquire early on as to any health insurance benefit plans that our clients may have through his/her employer and obtain a copy of the terms immediately.  Having such knowledge ahead of time will help avoid and address such potential dangers and, possibly, negotiate a better outcome for your client.

The United States Supreme Court recently declined to hear the Shank's appeal, thus ending the case in favor of Wal-Mart.  To add insult to injury, Mrs. Shank's son, a soldier, recently died in Iraq.

WalMart made $378 BILLION last year.

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http://www.weknowinjurylaw.com/blog/walmart%2Dthe%2Devil%2Dempire%2Ecfm http://www.weknowinjurylaw.com/blog/walmart%2Dthe%2Devil%2Dempire%2Ecfm james.carroll@cclaw.cc (Blog Author)2226 Fri, 28 Mar 2008 08:00:00 EST
America's Surprisingly Unhealthy Jobs From Yahoo.com:

Forget stuntmen. Some of the country's least healthy jobs are in cubicles, hospitals, and restaurants. Are you at risk?

According to the Bureau of Labor Statistics (BLS), it's not just farm laborers or police officers who have high rates of workplace injuries and illnesses. In fact, some common -- and seemingly benign -- professions have high rates of injury and illnesses that were severe enough to cause workers to miss at least one day of work in 2006.

The following eight professions are among the highest in terms of injuries and illnesses, listed in descending order based on the number of incidents reported to BLS (in parentheses).

Construction Worker (125,120)
"Falls and problems from repeated hammering are the biggest problems," says Garrett Brown, an industrial hygienist at the California Occupational and Health Administration.

Office/Administrative Staff (83,320)
The biggest risk is repetitive strain injuries from typing, as well as illnesses from inhaling toxic printing inks and other substances.

Sales Staff (76,210)
These jobs may seem innocent, but Brown says salespeople fall from ladders while gathering merchandise, strain themselves carrying it to customers, get repetitive strain from typing reports, and even suffer injuries from malfunctioning displays.

Nursing Aides, Orderlies, and Attendants (49,480)
These workers can be exposed to everything from toxic chemicals in hospitals and nursing homes to strains from lifting heavy patients.

Janitors and Housekeepers (46,540)
The heavy carts many housekeepers push can injure their backs and potent cleaning supplies can cause illnesses, says Brown.

Registered Nurses (20,500)
Lifting heavy patients, getting hit by gurneys, or attacked by family members can cause injuries.

Waiters (9,520)
"Those heavy trays don't carry themselves," says Dr. Davis Liu, author of "Stay Healthy, Live Longer, Spend Wisely: Making Intelligent Choices in America's Healthcare System." He continues, "Everything is supersized, and waiters are carrying 5- to 10-pound trays repeatedly, sometimes up on a shoulder with one hand."

Computer Specialists (2,720)
"The ergonomic problem here is not only typing, but also workplace design," says Brown. "Sometimes they squeeze tall people into small spaces."

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http://www.weknowinjurylaw.com/blog/americas%2Dsurprisingly%2Dunhealthy%2Djobs%2Ecfm http://www.weknowinjurylaw.com/blog/americas%2Dsurprisingly%2Dunhealthy%2Djobs%2Ecfm james.carroll@cclaw.cc (Blog Author)2192 Mon, 24 Mar 2008 08:00:00 EST
No Charges Filed Against Trooper's Stepson After Fatal Crash From NBC10.com:

The police report said witnesses saw the driver weaving on the road, but he walked away from a fatal car crash without a traffic ticket. The driver is a state trooper's stepson. When you hear the rest of the story, you may be asking the same questions as 15-year-old Macaulay Glynn.

"It wasn't fair that I was 12 and I had to go to sleep at night thinking where's the man who killed my mother," 15-year-old Macaulay Glynn said.  Her mother was a college English professor and a single parent of three.  "She was charismatic, outgoing," daughter Kerry Glynn said. "Definitely her kids came first in her life, always."

Diane Glynn was traveling on a highway outside of Scranton, Pa., on her way to work when a truck slammed into her car head-on, the NBC 10 Investigators reported.

"Probably the worst feeling in the world (is) to tell two little kids they are not going to see their mother again," Kerry Glynn said.

The driver of the other vehicle was 22-year-old Dean O'Halloran. His stepfather is a corporal for the state police, O'Halloran said in a sworn statement.

State police investigated the fatal accident. Police reports showed O'Halloran was seen weaving before the accident but police didn't administer a blood-alcohol test.  Wayne County District Attorney Michael Lehutsky said the officer didn't smell alcohol on O'Halloran's breath.

"The fact that there's an accident or that you have one indicator such as weaving is not enough probable cause for a police officer to submit to a blood analysis," Lehutsky said.

Though police didn't do a test, the hospital did. The report showed several hours after the accident that O'Halloran's blood-alcohol level of 0.149 percent was almost twice the legal limit, the NBC 10 Investigators reported.

In a deposition for a civil lawsuit when asked if he had consumed any alcoholic beverages, O'Halloran declined to answer, invoking his fifth amendment rights again self-incrimination.  Three hours before the fatal accident, O'Halloran was involved in a hit-and-run accident in another county, the NBC 10 Investigators reported,. Again, the stepson of a state trooper wasn't charged with anything, he was not given a traffic citation.

If you watched the local news that day, you would have never seen pictures of the crash. That's because state police did not put out a standard press release.  "It just makes this look more suspicious and it does need to be looked into," Lehutsky said.  "Either Dean O'Halloran got some preferential treatment that day," said Mark Tanner, a Philadelphia attorney who represents Diane Glynn's children. "Or it was one of the most inept investigations that one could imagine."

Tanner recently settled an $11 million civil suit against O'Halloran and the company he worked for.

NBC 10 went to O'Halloran's home, but was not able to reach him or his attorney for comment. 

"Nothing will ever be enough. My mom will never be back. I will never see my mother again. There's no monetary value you can put on the life of a mother," Macaulay Glynn said.  The money will allow Kerry, now a school teacher, to afford to raise her younger sister she's adopted.

It will help secure the future for their younger brother now living with a relative, but they said it won't give them justice.  "Prosecute him. Something has to be done. I don't sleep at night because of it. I don't think he should either," Kerry Glynn said.

The Wayne County District Attorney said he will look at the new evidence the Glynns' attorney has uncovered. State police said after three years, the accident investigation is continuing. Internal affairs is looking at it as well.

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http://www.weknowinjurylaw.com/blog/no%2Dcharges%2Dfiled%2Dagainst%2Dtroopers%2Dstepson%2Dafter%2Dfatal%2Dcrash%2Ecfm http://www.weknowinjurylaw.com/blog/no%2Dcharges%2Dfiled%2Dagainst%2Dtroopers%2Dstepson%2Dafter%2Dfatal%2Dcrash%2Ecfm james.carroll@cclaw.cc (Blog Author)2170 Thu, 20 Mar 2008 08:00:00 EST
PaAJ Gets Pro-Consumer Action on Insurance Coverage

The Pennsylvania Association For Justice learned this week that State Farm Insurance Company will be filing a new policy provision with the Pennsylvania Insurance Department which DELETES from all motor vehicle insurance policies an exclusion which had eliminated liability coverage for injured victims if they were injured in a motor vehicle accident caused by the negligence of a household relative.

This exclusion had been approved over a year ago by the Insurance Department and allowed State Farm Insurance to avoid paying liability claims if the injured person was related to the operator of the motor vehicle. Thus, if a child was injured while a passenger in a vehicle that was negligently operated by his or her parent, the child would not have been able to recovery under the liability provisions of the policy.

PAAJ brought the illegality of the exclusion to the attention of the Acting Insurance Commissioner and the Department by pointing out that the provision was taking away the Pennsylvania Legislative mandated liability coverage which was purchased and thus increasing the amount of uninsured situations. After PAAJ had several meetings and discussions with the Insurance Department, it was learned this week that the Insurance Department had communicated the problem to State Farm and State Farm is no longer going to attempt to enforce the exclusion, and will be making a new filing with the Department stating that future policies will not include the exclusion.

PaAJ member Scott Cooper led the efforts to achieve this accomplishment along with Ron Kovler, Jerry McHugh, Tim Riley, Mitch Clair and Mark Phenicie.

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http://www.weknowinjurylaw.com/blog/paaj%2Dgets%2Dproconsumer%2Daction%2Don%2Dinsurance%2Dcoverage%2Ecfm http://www.weknowinjurylaw.com/blog/paaj%2Dgets%2Dproconsumer%2Daction%2Don%2Dinsurance%2Dcoverage%2Ecfm james.carroll@cclaw.cc (Blog Author)2169 Thu, 20 Mar 2008 08:00:00 EST
PA launches hospital quality web site Beginning today, patients and their families in Pennsylvania can go to a single Web site to learn about the quality of local hospitals.

See the story here.

Find the website to compare hospitals here.

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http://www.weknowinjurylaw.com/blog/pa%2Dlaunches%2Dhospital%2Dquality%2Dweb%2Dsite%2Ecfm http://www.weknowinjurylaw.com/blog/pa%2Dlaunches%2Dhospital%2Dquality%2Dweb%2Dsite%2Ecfm james.carroll@cclaw.cc (Blog Author)2168 Thu, 20 Mar 2008 08:00:00 EST
Editorial on the importance of the Presidential race and protecting the Civil Justice system Pennsylvania Association For Justice Executive Director Anthony Green has written an op-ed published in the March 11 issue on the importance of this presidential election in choosing a leader sensitive to civil justice, the 7th Amendment and consumers' rights.

The article cites recent examples of the federal government's recent blunders in protecting consumers from harmful products and the trend toward preempting state government and state civil justice systems. "The next president must be someone who nominates agency heads who will understand the mission of their regulatory agency with respect to consumer rights. Most importantly, the next president must nominate the justices and judges who respect the constitutional rights of consumers and the role of civil courts as a last resort in protecting our safety and security."

Read the whole editorial here.

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http://www.weknowinjurylaw.com/blog/editorial%2Don%2Dthe%2Dimportance%2Dof%2Dthe%2Dpresidential%2Drace%2Dand%2Dprotecting%2Dthe%2Dcivil%2Djustice%2Dsystem%2Ecfm http://www.weknowinjurylaw.com/blog/editorial%2Don%2Dthe%2Dimportance%2Dof%2Dthe%2Dpresidential%2Drace%2Dand%2Dprotecting%2Dthe%2Dcivil%2Djustice%2Dsystem%2Ecfm james.carroll@cclaw.cc (Blog Author)2165 Thu, 20 Mar 2008 08:00:00 EST
Pain lasts long after traumatic injury: U.S. study I put this news article in the "News" section of the website and you can find it here.  But I'm also blogging about it because, I believe, it's a very significant study.  In my practice of helping injured people, I've noticed that there is this sense in the medical field that if you are feeling pain from an injury longer than 3 to 6 months then it must be in your head.  Or else you're manufacturing the symptoms.  But this study tells a different story.

A surprising number of people -- more than 60 percent -- still suffer significant pain a year after a traumatic injury in a car crash or other cause, showing the need for better pain treatment, researchers said.

In a study published on Monday in the journal Archives of Surgery, researchers tracked 3,047 patients ages 18 to 84 from 14 U.S. states who survived an acute traumatic injury.

A year after the injury, 63 percent reported that they still experienced pain related to the injury, with most having pain in more than one region of the body.

On average, the patients assessed their pain at 5.5 on a 10-point scale -- a level at which they would be expected to have moderate to severe interference with daily activities.

"I was surprised that the pain was as common and as severe as they reported it to be," said Dr. Frederick Rivara of the University of Washington in Seattle, who led the study.

"The implications are that we need to do a much better job of identifying pain in these patients, treating it adequately and treating it early," Rivara added in a telephone interview.

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http://www.weknowinjurylaw.com/blog/pain%2Dlasts%2Dlong%2Dafter%2Dtraumatic%2Dinjury%2Dus%2Dstudy%2Ecfm http://www.weknowinjurylaw.com/blog/pain%2Dlasts%2Dlong%2Dafter%2Dtraumatic%2Dinjury%2Dus%2Dstudy%2Ecfm james.carroll@cclaw.cc (Blog Author)2161 Thu, 20 Mar 2008 08:00:00 EST
New Case on Witnesses Estimating Speed in an Car Crash

Below is the link to the Pennsylvania Superior Court decision from March 12, 2008 in Fisher v. Central Cab Company where the court held that it was not an abuse of discretion for the trial judge to allow a lay witness to testify about the speed of an oncoming vehicle involved in a motor vehicle accident. The court follows the Pennsylvania Supreme Court decision in Shaffer v. Torrens, 58 A.2d 439 (Pa. 1948) about the admissibility of a lay witness to estimate speed of a vehicle to at least include

(1) an observation of the vehicle movement in question and

(2) a recognition of impression of like vehicles at relative speeds.

Also, the court follows its decision in Radogna v. Hester, 388 A.2d 1087 (Pa. Super. 1978) where it held that the witness must have more than a "fleeting" glance at the vehicle. In this case, the Superior Court noted that the lay witness in question was observing an oncoming vehicle and the evidence/testimony at trial indicated that the witness had sufficient knowledge of speed and time to observe the vehicle to make an estimation so the trial court decision to allow the testimony was allowed.

See the full case here.]]>
http://www.weknowinjurylaw.com/blog/new%2Dcase%2Don%2Dwitnesses%2Destimating%2Dspeed%2Din%2Dan%2Dcar%2Dcrash%2Ecfm http://www.weknowinjurylaw.com/blog/new%2Dcase%2Don%2Dwitnesses%2Destimating%2Dspeed%2Din%2Dan%2Dcar%2Dcrash%2Ecfm james.carroll@cclaw.cc (Blog Author)2136 Mon, 17 Mar 2008 08:00:00 EST
Phila. Judge Rules Paxil Labeling Suit