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.

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.

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

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.

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.

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.

By Andrew Cohen
© MMVIII, CBS Interactive Inc. All Rights Reserved.

"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.

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."

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 .

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.

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.

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.

   
     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."

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

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.

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.

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.

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.

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.

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.

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.

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." 

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."

"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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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

See it here.

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

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

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

See the Court's full opinion here.

From the Towanda DailyReview.com:

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

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

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

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

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

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

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

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

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

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

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

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

Evidence presented at trial called for a recall.

General Motors maintains that the vehicle is safe.

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

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

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

Blocked Departure Area Not an Inherent Risk of Skiing

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

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

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

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

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

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

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

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

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

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

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

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

Truckloads of data

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

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

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

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

The combined data can help reconstruct an accident.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Do you "speak insurance"?  We do.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

To see the full report, go to VerdictSearch.com

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

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

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

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

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

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

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

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

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

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

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

Check it out here.

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

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

Claborn v. Fincher

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Buonaiuto v. Stroud

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

Feliz v. Property Resources Corp

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

Torres v. Lucca's Bakery

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

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

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

His left leg had to be amputated.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Read the entire decision by the Court here.

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

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

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

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

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

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

The Tax Court analyzed the facts as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

See the entire article here.

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

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

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

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

From The Towanda Daily Review:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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.

"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."

See Verdict Search here for full report on this case.

The case was Malinoski v. Fairbanks.

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

     "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 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.

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.

"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.

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.

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.

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

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.

"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.

"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."

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.

"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.

"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."

"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."

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.

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.

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.

See the story here.

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.

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.

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

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

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.

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."

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.

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.

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.

See the story here.

Find the website to compare hospitals here.

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.

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.

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.

A Philadelphia judge ruled this week that federal law can't pre-empt a state product liability claim centering around the alleged failure of the makers of Paxil to warn about increased risk of suicide. 

Judge Allan L. Tereshko, the coordinating judge of Philadelphia Common Pleas Court's Complex Litigation Program, denied a defense motion for summary judgment Tuesday, ruling that the doctrine of federal pre-emption does not preclude the plaintiffs from arguing that GlaxoSmithKline failed to fulfill its duty to warn users of Paxil of an alleged association between the use of the drug and suicidality.

See the full story here.

See the story here.

See the story from The Wall Street Journal here.

"In two Florida court cases last year, state judges, before allowing the test to be cited, held special hearings on whether it was valid enough to be used as courtroom evidence. Both judges ended up barring it.  "Virtually everyone is a malingerer according to this scale," says a leading critic, James Butcher, a retired University of Minnesota psychologist who has published research faulting the Fake Bad Scale. "This is great for insurance companies, but not great for people."

Loophole in law allowed 'downer cows' to enter food supply, agency says.

The lawsuit claims the U.S. Department of Agriculture created the loophole with a rule change in July. The society says the USDA lets cows that fell down after an initial veterinarian inspection be slaughtered if they appeared otherwise healthy.

The USDA issued the largest beef recall in history this month after the Humane Society released undercover video showing workers at a California slaughterhouse shoving sick or crippled cows with forklifts to get them to stand.

"A ranking member of the Senate Finance Committee has asked the Food and Drug Administration and the maker of an artificial spinal disk about potential financial conflicts of many of the doctors involved in the clinical research that led to F.D.A. approval of the device.  The financial relationships were the subject of a front-page New York Times article in late January. Doctors at about half the research centers involved in the study of the artificial disk, the Prodisc, had a direct financial interest in the device's success."

And then, take a look at a recent blog post I did regarding:  The Supreme Court on Wednesday made it harder for consumers to sue manufacturers of federally approved medical devices.

So, the system of approving medical devices by the FDA is basically rigged.  But average people can't sue the manufacturers of the defective devices if the rigged FDA approves of it.

Are you seeing how this works, folks?

So, of course, industry groups are suggesting a binding internal appeal process for consumers whose policies are concelled.  Once again, taking people's right to a trial away from them.

See the story here from the Wall Street Journal.

See the story here from USAToday.com.

"Big business and its allies in the Republican Party have spent decades successfully vilifying "trial lawyers" as legal vultures and social parasites.  That nearly every dollar in a trial lawyer's wallet came from obtaining injured individuals the justice they otherwise would have been denied by our system is somehow lost.  Not on Grisham, part of whose purpose here is to remind us that the trial lawyer's contingency fee is the poor man's key to the courthouse"

Consumer advocates Wednesday hailed the settlement of a class-action lawsuit over Sears stoves in which the retailer agreed to install safety brackets for free to prevent the appliances from tipping over or provide other reimbursements.

According to the court-approved agreement, Sears will notify nearly 4 million customers who may have bought stoves between July 2000 and September 2007 that they either can get anti-tip safety brackets installed for free or receive gift cards or reimbursements of up to $100 to qualifying customers.

The brackets keep the appliances bolted to the floor or wall to prevent them from tipping over. Such accidents have caused more than 100 deaths or injuries, mostly from scalding and burns, according to the nonprofit consumer group Public Citizen.

The Supreme Court on Wednesday made it harder for consumers to sue manufacturers of federally approved medical devices.  In an 8-1 decision, the court ruled against the estate of a patient who suffered serious injuries when a catheter burst during a medical procedure. The case has significant implications for the $75 billion-a-year health care technology industry, whose products range from heart valves to toothbrushes.  At issue before the Supreme Court was whether the estate of Charles Riegel could sue a company under state law over a device previously cleared for sale by federal regulators.  State lawsuits are barred to the extent they would impose requirements that are different from federal requirements, said the ruling by Justice Antonin Scalia.

Here's a statement from the American Association For Justice in response to the decision:

Today, the Supreme Court issued its decision in Riegel v. Medtronic, Inc. In this case, Charles Riegel received a balloon catheter made by Medtronic which subsequently ruptured due to overinflation. Riegel developed a heart block and underwent emergency surgery. The Riegels later brought claims against Medtronic in the United States District Court for the Northern District of New York. The court found that the Riegels claims were preempted under the Medical Device Act, and the Second Circuit Court affirmed the decision. In this opinion, the Supreme Court affirms.

• The Supreme Court holds that state law claims regarding medical devices are preempted under the Medical Device Amendments (MDA) where the device manufacturer complied with federal requirements.

• In her dissent, Justice Ginsburg's first footnote states that the "Court's holding does not reach an important issue outside the bounds of this case: the preemptive effect of §360k(a) where evidence of a medical device's defect comes to light only after the device receives premarket approval."

Many of these buses, even the new models, don't have seat belts for the children.  I think it's a shame.  For some reason, people feel safer due to the size of the bus.  But if any bus is in even a minor collision, if you're not strapped down, you're going to be flying around.  I believe there is a statute that supporters were trying to get enacted to mandate seat belts in school buses.  Not sure of the status of that.

"In what is being called the largest beef recall in history, many schools nationwide, including Sayre Area School District, have been affected by the Westland/Hallmark Meat Company recall, as the company provides its products to the National School Lunch Program."

See more on the story here.

See the story from The New York Times here.

"This system is an invitation for abuse. UnitedHealth owns the company whose database will affect its costs and profitability, so both have a strong financial interest in keeping reimbursement rates low."

See the details here.

You can call if you want autographs.....

The Pennsylvania Superior Court issued a decision in Bell v. Kater where the court affirms a $2 million verdict in a case where a person was involved in a parking lot car accident. An issue arose over whether the person who caused the accident was immune from suit since the two parties were co-workers. The issue was not raised as an affirmative defense and the Superior Court holds that (1) the state trial court had jurisdiction over the case and (2) that any such defense of immunity was waived because immunity was not raised as an affirmative defense.

Here's a linky to the decision.

Why must lawyers do this?  It gives us all such a bad name.

The story in the blog post is quite eye-opening. 

Some of the highlights:

GOV. RENDELL: "MED-MAL CRISIS" OVER. The Governor made this announcement at the Philadelphia College of Physicians. The site he selected for the announcement sent a message almost as important as his words.

On February 4, 2008 in Orzel v. Morgan, No. 03 CV 4929 (Lack. Co. 2008) the trial court in Lackawanna County decided post-trial motions which involved injuries sustained in a car accident.  As part of the verdict in favor of the Plaintiffs the jury awarded future medical expenses of $125,000.  Since the Plaintiffs had $100,000 in first party medical coverage and there were still $85,422.39 in benefits remaining, the Defendant sought to reduce the award for future medical bills to zero by arguing that the future medical bills should be subject to Act 6 reductions and then offset from the award.  Also, then the remainder would be paid by Health insurance.  The Plaintiff sought to recover the full amount of the future medical bills by arguing that the future bills were not "payable" under the MVFRL.

I've put the fact paper in the library section, here.

The state Department of Environmental Protection (DEP) said this week that it has fined Troy Community Hospital $3,000 for a number of infectious waste violations discovered at the hospital last year.

"The violations DEP found were corrected the same day by hospital staff, and they also submitted a written plan to DEP to prevent them from recurring," DEP Northcentral Regional Director Robert Yowell said in a news release.

During a routine inspection at the hospital in October, DEP staff found an open lid on a container for discarded needles and other sharp objects, as well as a cart used to transport infectious waste that was not labeled properly. The hospital also failed to have protective clothing available for employees packaging infectious waste or immediately labeling infectious waste storage containers for off-site transportation.

See the story here.

See the story here.

Chantix is prescribed to help people stop smoking.  But, as the article explains, there is concern that it might cause depression, suicidal thoughts and other psychological conditions.  There is now a warning for "intense mood and behavior changes."

Not sure if there's an actual class action law suit stated yet.  My google search did not come up with anything definitive.  But I'll keep you posted.

"We're outraged that they are asking doctors to violate the sacred trust of patients to rat them out for medical information that patients would expect their doctors to handle with the utmost secrecy and confidentiality," said Dr. Richard Frankenstein, president of the California Medical Assn.

Of course, the health insurance carriers will only attempt to cancel a policy once it is clear a patient has a significant health problem that will cost a lot of money.  Further, many times, policies are canceled over honest mistakes or minor inconsistencies, all in the name of saving a buck.  Can you remember every time you saw a doctor in the last 10 years and for what reason?  Neither can I.  But your health insurance may be canceled because of it...with the help of your doctor...if the health insurers have their way.

See the full story here at LA Times.

A Pennsylvania jury awarded $10.2 million to a teenager who was paralyzed in a drunken driving crash while wearing a lap belt in the backseat.  The belt tore into Chelsea Pursell's abdomen, fracturing her spinal cord and causing internal injuries after the car hit a utility pole on May 28, 2004. Five teens were riding in the car when it crashed; Pursell, who turns 20 next month, was the most seriously injured.

The verdict assigned 51 percent of the liability to the driver; 39 percent to the car's maker, Volkswagen; and 10 percent to PPL, which owns the utility pole, Pursell's attorney said.

Response from PAJ member Robert Sachs' blog: "Notably absent from Ms. Burling's article were any injured victims who tried to pursue their constitutional rights in court, only to find out that they had unknowingly signed paperwork thrust at them on a clipboard which gave up their centuries-old right to sue." (Read more)

My personal belief on the use of arbitration clauses is that they are a wonderful tool in solving issues and cases without litigation, as long as they are agreed upon in an arm's length transaction between sophisticated parties.  Your "average Joe" doesn't know  a thing about arbitration and its pros and cons when he's asked to sign an arbitration clause in the emergency room.  All he wants is his broken arm fixed.  That is the true danger of letting these stealth arbitration clauses loose on an unsuspecting (and unknowing) public.

See the story here.

Last month, the Food and Drug Administration (FDA) issued a proposed rule which directly contradicts Congress' expressed intent when it passed the Food and Drug Administration Amendments Act of 2007 (FDAAA), an act which encompasses the Prescription Drug and User Fee Act.

If the rule becomes final, drug companies will enjoy more relaxed labeling requirements and will surely use the rule to claim immunity for failing to warn patients of potential drug hazards.

When Congress passed the FDAAA it included language confirming the responsibility of the drug manufacturer to promptly update its drug label when they become aware of new safety information. Congress was clear that it intended to keep the burden squarely on the drug companies to update warning labels. Nevertheless, the FDA has promulgated this new rule against Congress' expressed wishes. Congress explicitly stated that it did not intend to ease the requirements on drug companies to inform consumers of potential drug hazards.

It reiterated the need for drug companies to change its label if the drug company learns of reasonable evidence of that risk. In fact, the drug companies fought and lobbied hard to include language to loosen warning label obligations that the Congress specifically left out of the final bill. But since the drug companies couldn't get Congress to agree to lessen their responsibilities towards consumers, they turned to the Bush Administration.

The so-called "tort reformers" are at it again. Having lost battles to thwart 7th Amendment rights with caps on damages, to kill the time tested joint and several liability principle and other measures, state Rep. Mauree Gingrich (R-Lebanon) introduced HB 1942, that would cap fees only for a single category of lawyers: trial attorneys.

It's the trial attorneys who take on manufacturers of harmful drugs and products, corporate wrongdoers, giant insurance companies, and negligent hospitals responsible for the epidemic of avoidable deadly infections. Their clients are working families and individuals.

""It will save all of us money. why should we have two police chiefs, two sergeants, and everything."-said Athens Taxpayer Jim Carroll"

I better go pay my taxes now....

The debate about tort reform is largely cast in terms of corporations versus trial lawyers, so it fails to capture what is really at issue: Are citizens in a democracy entitled to make decisions, or must they defer to elites at every turn?

We continue to value the jury in the criminal context, but we belittle it in the civil context. Why? Even if criminal defendants were dissatisfied with the jury system, they do not have at their disposal the political and communications resources available to corporate tort defendants.

In a concerted effort during the past several decades, corporate tort defendants have bombarded the media with stories about the assertedly grave injustices they suffer at the hands of scheming plaintiffs aided by greedy trial lawyers. They have constructed two mantras: "Legislatures make law, courts apply law" and "Juries find facts, courts apply them." Both are nonsense, constructed for purposes of altering the political landscape.

 

Great article.  Here's the link.

Here's a link to the article from The Washington Post.

Why are the documents such a bid deal?  As this article points out:

"The so-called McKinsey documents consist of a 12,500-slide presentation prepared by Allstate consultant McKinsey & Co. Part of an overhaul of the company's national claim-handling procedures, the material recommends that Allstate take a hard-nosed approach to settling claims.  Allstate has argued repeatedly that the documents consist of trade secrets, and that it would be damaged if competing companies got a glimpse of how it conducted business. Critics say the documents reveal a strategy to boost profits by shortchanging customers."

I'm sure they'll figure a way...they always do.

A nurse admitted yesterday that he plucked body parts from 244 corpses in Philadelphia and helped forge paperwork so the parts, some of them diseased, could be used in unsuspecting patients.

Full story here.

Here's a link to the story at CNNMoney.com.

Here's a link to the story at The HuffingtonPost.com.

Here's a link to the story from The Times Leader.

Mandatory arbitration agreements have been getting a lot of attention lately, particularly because of the high rate of "wins" when a creditor is a plaintiff.  This win rate has been placed as high as 95%.  The "reform" movement is quick to suggest that the reason the win is artificially high because there are so many default judgments in credit card agreements.  I agree with that hypothesis.  The vast majority of debtors will simply not respond when sued or taken to arbitration.  Generally, people who get 3-6 months behind in their bills do so because they don't have enough money to pay their bills - let alone to hire an attorney to defend them for not paying their bills.  But where I disagree with the "reform" crowd is why I believe mandatory arbitration clauses are so prevalent in credit card agreements. 

Also, from Public Citizen, how credit cards companies ensnare consumers.

Behind the fight between Florida's insurance commissioner and Allstate are the McKinsey documents. Until now, these documents – which allegedly show how the insurance giant intentionally made low-ball claim offers to its customers for years, netting it billions of dollars – haven't seen the light of day. But Florida is now demanding the documents from Allstate and other insurers in a broad-based investigation of the companies' business practices, including alleged collusion with other insurers and their claims handling procedures.

I might be sensing a house of cards here.....

WASHINGTON - It's a dirty little secret of food poisoning: E. coli and certain other foodborne illnesses can sometimes trigger serious health problems months or years after patients survived that initial bout.  Scientists only now are unraveling a legacy that has largely gone unnoticed.

What they've spotted so far is troubling. In interviews with The Associated Press, they described high blood pressure, kidney damage, even full kidney failure striking 10 to 20 years later in people who survived severe E. coli infection as children, arthritis after a bout of salmonella or shigella, and a mysterious paralysis that can attack people who just had mild symptoms of campylobacter.

"Folks often assume once you're over the acute illness, that's it, you're back to normal and that's the end of it," said Dr. Robert Tauxe of the Centers for Disease Control and Prevention. The long-term consequences are "an important but relatively poorly documented, poorly studied area of foodborne illness."

These late effects are believed to make up a very small fraction of the nation's 76 million annual food poisonings, although no one knows just how many people are at risk. A bigger question is what other illnesses have yet to be scientifically linked to food poisoning.

Attached is the link to Nationwide v. Yungwirth where the Pennsylvania Superior Court holds that the insurance company did not impermissibly limit the definition of uninsured motorist coverage in a policy in a case dealing with an accident while someone was injured as a passenger on an ATV (all terrain vehicle).  The court notes that there are special laws for the ATVs which basically take ATVs out of the definition of "motor vehicle" in Section 102 of the law and thus, the ATV is not within the scope of an "uninsured vehicle" or UM coverage in the Motor Vehicle Financial Responsibility Law. Thus, Nationwide was allowed to write a policy which excluded ATVs from being considered an uninsured motor vehicle.

Here's a link for the case.

This news from CNN.com really just depressed me on several levels.  First level is why in the hell didn't we know of this BEFORE the medication was put on the market.  And the second level is pure selvish.  As many of you know, my wife and I have 4 little girls.  How are we going to deal with all of those runny noses, coughs and soar throats?

FDA to declare cold medicines too risky for babies, toddlers

WASHINGTON (AP) -- Parents should not give sniffling babies and toddlers over-the-counter cough and cold medicines -- they're too risky for tots so small, the government will declare Thursday.

Expect a decision on that by spring, the deadline necessary to notify manufacturers before they begin production for next fall's cold season.

For now, the FDA is issuing a public health advisory on Thursday to warn parents to avoid these drugs for children under age 2 "because serious and potentially life-threatening side effects can occur."

It's not the first warning about cold remedies and tots: Drug companies last October quit selling dozens of versions targeted specifically to babies and toddlers. That same month, the FDA's own scientific advisers voted that the drugs don't even work in small children and shouldn't be used in preschoolers, either -- anyone under age 6.

Thursday's advisory marks the government's first ruling on the issue: Don't give the drugs to children under 2. And it comes now because the FDA is worried that parents haven't gotten that message despite all the publicity last fall.

They may still have infant-targeted drugs at home, or they may buy drugs meant for older children to give to hacking tots instead, said Dr. Charles Ganley, FDA's nonprescription drugs chief.

"We still have a concern," Ganley said. "It falls out of people's consciousness. We're still in the middle of cold season right now."

Ganley said he is particularly concerned by recent surveys that suggest many parents don't believe OTC cold remedies could pose a problem, especially if they've used them with an older child who seemed to get better.

Thursday's move is a good first step, said Dr. Joshua Sharfstein, the Baltimore, Maryland, health commissioner, who petitioned the FDA last year to end use of these nonprescription remedies by children under 6, a move backed by the American Academy of Pediatrics.

The reason: There's no evidence that these oral drugs actually ease cold symptoms in children so young -- some studies suggest they do no good at all. And while serious side effects are fairly rare, they do occur.

Indeed, the Centers for Disease Control and Prevention last year reported that more than 1,500 babies and toddlers wound up in emergency rooms over a two-year period because of the drugs.

"It's one thing if you're curing cancer, but we're talking about a self-limiting illness," said Sharfstein. "If there's really no evidence of benefit, you don't want to risk the rare problem. Then you're left with tragedy that you can't justify."

The drug industry says these medicines are used 3.8 billion times a year in treating children's cough and cold symptoms and are safe for those over 2.

Health groups acknowledge that while low doses of cold medicine don't usually endanger an individual child, the bigger risk is unintentional overdose. For example, the same decongestants, cough suppressants and antihistamines are in multiple products, so using more than one to address different symptoms -- or having multiple caregivers administer doses -- can quickly add up.

Also, children's medicines are supposed to be measured with the dropper or measuring cap that comes with each product, not an inaccurate kitchen teaspoon.

Why is this an issue now? Child versions of cold remedies were allowed on the market decades ago, when scientists thought that what worked in adults would automatically work in children. Scientists today know that is not always the case.

So the FDA is asking an even bigger question: Are OTC cold remedies safe and effective for children under 12? The agency's advisers last fall stopped short of recommending no use by children ages 6 to 11, but they did call for more research to determine what effects the medicines have in youngsters overall.

Separately, an internal FDA working group hasn't yet reached a consensus about children 2 to 11 years old, but has been given a February deadline to forward recommendations to agency leaders, Ganley said in an interview Wednesday. The goal is a spring announcement.

In the meantime, the FDA's advisory recommends for older children:

• Carefully follow the label's directions.

• Be very careful if you give more than one product to a child. If you give two medicines that have the same or similar ingredients, a child could overdose.

• Understand that these drugs only treat symptoms. Colds are viruses, and the drugs will not make them go away any faster.

1. Don't forget to call your doctor on the way to the ER

When ER doctors hear from a fellow physician, they listen, says Beiser at the University of Chicago. "They'll talk to me professionally and put a bug in my ear," he says. "This guy will now be on my radar screen."

2. Don't use an ambulance unless you really need it

"There's a myth out there that if you arrive in an ambulance, you'll go straight back to the doctor," Mason says. "But it's not true. If we can see that you can walk, you may get asked to get off that gurney and go to the waiting room."

3. Don't be quiet

If the triage nurse -- that's who makes the decisions about who needs care first -- isn't helping you, don't stop there, says Sayah. "Speak up. Say, 'I need to see the person in charge,'" he says.

4. Don't get angry, and don't lie

While it's important to make yourself heard, it's also important to use basic etiquette.  "We're all human, and usually when people are nice to us, we're nicer back to them," Sayah says.

Lying about your symptoms -- making them seem worse than they really are in hopes of getting attention faster -- can backfire, says Dr. William Bozeman, an emergency room doctor at Wake Forest University Baptist Medical Center in Winston-Salem, North Carolina.

"We have people saying they have crushing sub-sternal chest pain, that they're having a heart attack, when in reality they're trying to get Vicodin for chronic back pain," he says. When the staff figures it out, "They may not be very pleased at all and may not treat you nicely."

5. Don't forget the phone

If things get really bad, and no one is helping you, look for a house phone, dial zero, and ask for the hospital administrator on call, Sayah says. "Even the smallest hospitals have a hospital administrator or a patient advocate on call 24/7," he says. "Hospital administrators don't want to hear patients are unhappy. Their job is to break the hurdles and move forward."

Eric Simpson was strangely calm when his insurance company, Aetna, called saying it was sending a man for his right arm. The woman on the phone told him he should have known he had only $2,000 of coverage through Aetna for artificial limbs. And the arm, which he'd just received that week, cost more like $37,000. Later, however, Aetna officials admitted they had mistakenly considered his new arm medical equipment rather than a prosthetic, which is covered in full.

In the wake of Hurricane Katrina, we are again reminded why consumers have a healthy distrust of insurance companies. After years of religiously paying premiums for the peace of mind of knowing they were covered, hundreds of thousands of policyholders found they had been paying money for nothing.

Insurance companies have employed hardball tactics like delaying or denying the payment of legitimate claims, altering policies, lowballing, aggressively fighting valid claims and even alleging fraud long before Katrina. And for good reason: every dollar saved on paying claims is a dollar that increases profits and drives up stock value. With insurance company CEOs receiving annual compensation greater than the gross national product of many nations, it's easy to see why profits might get put ahead of the interests of policy holders.

After Katrina, the international consulting firm McKinsey & Co. was retained by many insurance companies to stem the anticipated tide of claims payments. McKinsey had introduced a strategy of "deny, delay and defend" under which insurers offer some customers less than full value of their claims and deny payment and aggressively litigate other claims. A policyholder is then forced to sue to recover what is owed and must incur both the cost of litigation and further delays in obtaining payment.

Many policyholders simply accept what is offered to avoid having to hire counsel and bring suit, and because of the costs involved, those who bring suit net out much less than the policy provides for. The strategy works very well, at least for stockholders of insurance companies. Despite the historic losses caused by Katrina, the property casualty insurance industry (those who sell coverage on homes and cars) is reaping huge profits. Property casualty insurers reported their highest profits ever, $64 billion, in 2006. This trumps the previous record profit of $44 billion they made in 2005, even after accounting for Katrina claims. Experts predict that 2007 looks like another stellar year for the industry.

The insurance industry has awakened to the fact that its reputation has been seriously damaged by Katrina. "I know that we cannot wave a magic wand and convince the vast majority of the public to love us," says David Sampson, president of the Property Casualty Insurers Association of America.

The company has hired Frank Luntz, a Republican pollster and accomplished wordsmith, best known for labeling President Bush's pro-logging industry policy "the Healthy Forests Initiative."

But a battery of public relations consultants will not solve the public's mistrust of the insurance industry if the end result is just word games, smoke and mirrors. Here's a thought: why not try paying legitimate claims on time? When a tragedy occurs, why not send in a quick response team with check-writing authority right away instead of spending days in the board room dreaming up ways to avoid or delay paying policyholders? How about throwing McKinsey's "deny, delay and defend" strategy into Lake Pontchartrain and focusing instead on improving business practices? And rather than spending a fortune to lobby against laws that would protect consumers, why not actively work to reduce the preventable losses your policyholders regularly sustain?

Acting in good faith isn't just good public relations or a sound business practice for insurance companies: they have a fiduciary duty to promptly pay the legitimate claims of their policyholders.

Many states are busy trying to enact new laws that will force insurance companies to act more responsibly. In November, voters in Washington state approved a ballot measure allowing policyholders to sue for restitution if an insurance company "unreasonably" denies a legitimate claim. The law is similar to one in Pennsylvania that holds insurance companies accountable for misconduct. This gives policyholders some protection against "deny, delay, and defend" tactics. That may explain why the insurance industry spent $11.5 million to try to defeat the measure in Washington -- breaking a state record for spending on a referendum.

Fortunately, voters saw through the insurance companies' clever ads and approved the measure. More states should follow Pennsylvania's and Washington's example.

Rule No. 1 for how to succeed in any business is to play by the rules and treat customers honestly and fairly. Only by treating their policyholders as well as they do their shareholders can insurance companies hope to win back the public's trust.

Congress investigating 7 companies, but FDA says it's OK for now

WASHINGTON - House Democrats are investigating whether a chemical used to package baby formulas poses a risk to infants, despite assurances by U.S. regulators that it is safe for kids and adults.

Reps. John Dingell and Bart Stupak sent letters Thursday to seven companies that make baby formulations, questioning whether they use bisphenol A in the lining of their cans and bottles. The companies include Hain Celestial Group, Nestle USA, Abbott Laboratories and Wyeth.

The chemical at issue has been used to package foods for over 50 years, but consumer advocates said last year that trace amounts that leak into food could be dangerous to babies.

The makers of antidepressants like Prozac and Paxil never published the results of about a third of the drug trials that they conducted to win government approval, misleading doctors and consumers about the drugs' true effectiveness, a new analysis has found.

In published trials, about 60 percent of people taking the drugs report significant relief from depression, compared with roughly 40 percent of those on placebo pills. But when the less positive, unpublished trials are included, the advantage shrinks: the drugs outperform placebos, but by a modest margin, concludes the new report, which appears Thursday in The New England Journal of Medicine.

So, basically, the drug companies rarely published negative studies that would hurt the chances of their drug's approval.  While 94 percent of the positive studies found their way into print, just 14 percent of those with disappointing or uncertain results did.  Is this trustworthy behavior?