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Risks of Cell Phone Use While Driving

Margaret Embry — Wed, 13 May 2009 14:14:50 GMT

A year ago, Michelle Smith hit and killed a 9-year-old girl, Erica Forney, riding her bike in the bike lane in Fort Collins. Though she doesn't have a clear memory of the crash, it is believed that Smith was distracted after finishing a cell phone call while driving. As part of her plea agreement, Smith was required to write a letter of apology to the victim's family which was recently published, according to The Denver Channel, ABC 7 News.

The newspaper [Fort Collins Coloradan] reported that Smith wrote in the letter that, if she had appreciated the risks associated with cell-phone use while driving, Erica Forney might still be alive.“My heart and prayers are and will always be with the Forneys,” she concluded in her letter.

Below are some cell phone driving statistics provided by Nationwide Mutual Insurance Company.

Distraction from cell phone use while driving (hand held or hands free) extends a driver's reaction as much as having a blood alcohol concentration at the legal limit of .08%. (University of Utah)

The No.1 source of driver inattention is use of a wireless device. (Virginia Tech /NHTSA)

Drivers that use cell phones are four times as likely to get into crashes serious enough to injure themselves. (NHTSA, Insurance Institute for Highway Safety)

10% of drivers aged 16 to 24 years old are on their phone at any one time.

Driving while distracted is a factor in 25% of police reported crashes.

Driving while using a cell phone reduces the amount of brain activity associated with driving by 37%. (Carnegie Mellon)

Please see the Governors Highway Safety Association to check your state cell phone driving laws.

Originally posted at InjuryBoard by Margaret Embry

Will the Denver Democratic National Convention Lead to Personal Injury Lawsuits?

Kyle Bachus — Thu, 19 Jun 2008 16:47:39 GMT

The craze has begun, as the City of Denver works hard in anticipation and preparation for the Democratic National Convention (DNC). Set to take place on August 25 - 28, 2008, the DNC may generate more than a nominee for the Presidency. The DNC may generate a “suit-boom” in Denver.

As a Denver resident, anticipating the increases in traffic and pedestrians on the streets, the use of public transportation, accommodating out-of-state guests and members of the media with lodging and rental cars, and welcoming the arrival of politicians in private aircrafts poses some concerns. Will all this spark a “suit boom” in Denver?

The estimated $40 million it will cost to host the DNC will likely be spent, in large part, on the implementation of federal anti-terrorism procedures and security during the week. According The Rocky Mountain News, Sara Burnett reported the DNC is expected to draw thousands of protestors, and from the sounds of it, there are also thousands of rumors of what security measures will be taken by organizers of the DNC and how it will accommodate both Denver residents and visitors.

Noelle Leavitt, from the Denver Business Journal, reported Airspace around Denver is likely to be severely restricted when top political figures, Democratic Party sponsors and celebrities visit for the Democratic National Convention in August. General aviation airports in the metro area expect a huge surge in business from attendees who choose not to fly through Denver International Airport during the convention. But the event could temporarily ground some private aircraft. All forms of transportation will likely have to operate differently during the DNC. With these expectations, it is only logical to prepare for the worst.

All this leads me to the very real possibility that the DNC, and the 35,000- 50,000 people it will bring to the city, will inevitably ignite a small “suit- boom.” Think about it. More traffic and more pedestrians mean more accidents and more insurance claims for bodily injury. Visitors, by foot or by vehicle, will hurriedly and carelessly try to get downtown in time for floor sessions, scrambling through mobs of lobbyists and news reporters. Residents will become frustrated with the incessant traffic on their journey to and from work. One thing is probably true—Denver Police will not only be busy keeping protestors in line, they will be filling out traffic accident reports and issuing citations constantly.

Niki Skaggs
Law Clerk
J.D. Candidate 2009
University of Denver

Originally posted at InjuryBoard by Kyle Bachus

Woman Dies On Floor Of Hospital After Calling 9-1-1

April Armani — Wed, 13 Jun 2007 18:38:19 GMT

Woman dies at hospital after calling 9-1-1.

A woman died of a perforated bowel at King0Harbor Hospital in Los Angeles on May 9th after 9-1-1 refused to contact paramedics or an ambulance to take her to another facility. In 9-1-1 tapes released today by the Los Angeles Times, the woman's husband is heard pleading with the 9-1-1 dispatcher to send help. Help never arrived and the woman died after bleeding from her mouth and writhing in pain on the hospital floor for close to one hour.

This type of negligence is horrifying. A second call was placed by a bystander and the dispatcher again repeatedly refused to send help. It serves as a stark reminder that those who often need the most help, never receive it. It also reminds us here at Bachus & Schanker why we continue to fight the good fight.

Originally posted at InjuryBoard by April Armani

So what is an MDL?

Staff Writer — Wed, 19 Apr 2006 09:31:53 GMT

Many folks have recently seen or perhaps heard of the Vioxx, Celebrex, Bextra, Ortho Evra, Guidant and Medtronic "MDLs" in the media. So what is an "MDL"? Well, its shorthand for multidistrict litigation. The first thing you need to know about multidistrict litigation is that its not the same thing as a class action. A class action is a lawsuit where a few people sue on behalf of themselves and others similarly situated but the latter folks aren't individually named in the suit. For example, two people could sue on behalf of thousands of other people who signed the same finance agreement that contained an alleged illegal interest rate. If the court agreed that the claims were similar and that resolving the named plaintiffs' claim would also resolve all the claims of the un-named class members, then the judge would certify the class. If the named plaintiffs win at trial, then so do the un-named plaintiffs.

Multidistrict litigation is very different from a class action. Here are some basic aspects of multidistrict litigation. Although some States have multidistrict litigation, most of it is conducted in the federal courts. Here's how it works. Assume that a drug is suddenly pulled off the market because a recent clinical study reveals its dangerous and has injured people. When word gets out, claimants go to attorneys across the country. These attorneys begin filing suits against the manufacturer in various federal district courts. If enough suits are filed against the same manufacturer for the same drug and for the same or similar injury, a federal court or perhaps the manufacturer or even the plaintiffs' lawyers will ask the Judicial Panel on Multidistrict Litigation in Washington, D.C. to create an MDL proceeding. This Panel will hold a hearing and decide whether to create an MDL proceeding, and if so, where it will be located. Typically, but not always, it will be located in a federal court that already has a number of these particular cases.

Once the MDL court is established, then all the federal courts in the country that have these same type of cases will transfer their cases to the MDL court. As a result, all of the cases are now before one court who then manages the pre-trial proceedings for all those cases as though there was only one case. For example, there may be a thousand individual cases in an MDL, but one ruling will decide an issue for all. These rulings are of a general nature and don't usually delve into the specifics of an individual case. The idea is that it is much more efficient to have one ruling on a general issue than having one thousand rulings by many judges on the same issue.

The MDL proceeding is managed by the federal judge with the help of the claimants' and defense attorneys involved. Typically, a plaintiffs' steering committee is created, its members are appointed by the MDL judge, and it is responsible for representing all the claimants in the MDL. The idea is to have a limited number of experienced attorneys handle the pre-trial proceedings for all MDL claimants. Typically, there will be a lead counsel for both sides and they are responsible for conferring about issues. This process greatly reduces the number of attorneys who actually are involved in the pre-trial proceedings.

Another interesting practice in some, but not all, MDLs, is the use of "tolling" agreements. Most folks understand that if injured, the law requires them to file suit within a specific time, or their claim will be barred. These time periods, usually called statutes of limitations, vary from state to state in the length of time allowed to sue and how those time periods are computed. A "tolling" agreement between the plaintiff and the defendant "tolls" the running of the statute of limitations as long as the agreement is in effect. What this practice enables attorneys to do in an MDL proceeding is to reduce the actual number of cases that are filed in court and transferred to the MDL court. This reduces legal fees, costs and the impact on the courts and their staffs in handling potentially thousands of cases. Instead, the claimants under the tolling agreement become a part of the MDL action just as if they were filed in court. These claimants can participate in a settlement or be filed in court once the MDL is complete. If filed in court, the claims aren't barred by the statute of limitations as long as they weren't barred before the tolling agreement was signed, or are still within the statute of limitations if filed before the expiration of the statute of limitations-taking into account the time tolled. For example, if the statute of limitations is three years, and one year had run when a tolling agreement was signed, then the claimant would have the remaining two years to file suit once the tolling agreement was terminated-even if that termination happened more than three years from the injury.

So what happens in these MDL proceedings. Not every MDL will be run the same way; different judges have different techniques or even philosophies about how to get the job done. Some judges just oversee the discovery process (which is designed to obtain the basic facts of the case), rule on discovery disputes, and decide important issues about whether evidence that the drug could cause the injuries complained of is relevant and reliable enough to be presented to a jury. This approach was used in the Phenylpropanolamine (PPA) MDL. Other judges oversee the discovery process but actually have jury trials on a few cases that were actually filed in their own court. The idea here is to use the rulings and verdicts in these trials to resolve issues in all cases, and also to help the attorneys and clients to reach a quicker settlement. This approach is being used in the Vioxx MDL.

But at some point, the only thing left to do with all these cases is to settle them or try them. Some MDLs are settled individually, others as a group. One type of settlement is for the manufacturer to negotiate with individual claimants and settle their cases or not. Another approach is where the manufacturers agree to pay a set sum of money, and all claimants apply for compensation based on their individual case. This latter approach is usually monitored by the MDL judge, but the settlement awards are determined by neutral masters or arbiters who have experience in this area. Each claimant is typically free to accept or reject the award, but if they accept it, then they give up their claim and release the manufacturer of any further liability.

So what happens if there's no settlement? This a point where multidistrict litigation differs from class actions. In the multidistrict litigation, all the individual cases that aren't settled are transferred back to the court they were originally filed in and each case is individually tried to a jury. So, theoretically, all one thousand cases in the MDL court could be transferred back, to the court they were filed in, and every one of them would be tried individually. Contrast that to a class action where there are two named plaintiffs, and one hundred thousand un-named plaintiffs. In the class action, there would be one trial. The only way an un-named plaintiff in the class action would get a trial would be to "opt-out" of the class and go it alone. This is rare, particularly in class actions where each individual recovery is small and couldn't justify the costs of the litigation standing alone from all the other claims.

Circling back to the beginning, what happens if you have a State case in a State that doesn't have multidistrict litigation? Well, depending on the circumstances, you may well still end up in the federal MDL proceeding-even if it is against your will. Here's how that can happen. You file your product liability lawsuit against the manufacturer in your local State court. However, you reside in a different State than the manufacturer does. Most manufacturers are corporations. Corporations can "reside" in the State they were incorporated (created) in, or where they have their principal place of business if the latter is in a State other than where it was incorporated . If neither of these two (or one) places is in the plaintiffs' state of residence where the suit was filed, so that all parties are from different States, then under federal law the manufacturer can "Remove" the case to the federal court sitting in the State where the suit was filed. This Removal can only happen, though, if the value of the claim is above $75,000. And, the plaintiff has no say in the matter as long as the federal procedural requirements are met.

Removal is a complex legal process, but if used correctly, it can be used to get the State court case into federal court, and once there, it can be then transferred to the MDL court just as if it were originally filed in federal court. Why is Removal permitted? Early in the history of our country, there was concern that out of state defendants wouldn't get a fair shake in a State court in the hometown or district where the plaintiff resided. The idea was to grant that defendant the right to remove the case to a federal court, who would presumably give the plaintiff a fair trial because federal judges are supposedly impervious to hometown pressures given that they are appointed by the President, confirmed by the Senate and serve life terms on good behavior.

Even today, these same cries of bias and unfairness reverberate in the Congress, media and in legal circles about whether corporations who are defendants can be treated fairly in State courts. Recently, Congress enacted the "Class Action Fairness Act," which, among other things, allows a defendant to Remove a State Court class action to federal court even though there isn't "complete diversity" between the plaintiffs and defendants. Instead, it provides federal district courts with original jurisdiction of class actions in which: (A) any class member is a citizen of a state different from any defendant; (B) any member of the plaintiff class is a foreign state, or a citizen or subject of a foreign state, and any defendant is a citizen of a state; or (C) any member of the plaintiff class is a citizen of a state and any defendant is a foreign state or a citizen or subject of a foreign state; and there are 100 or more class members; and the aggregate amount in controversy exceeds $5,000,000. Previously, the law for filing class actions in federal courts required diversity of citizenship between every class representative and also required that every plaintiff seek damages in excess of $75,000. This new law will, in the future, deprive many consumers of their right as plaintiffs to file suit in the forum of their choosing. The reason? Because this new law will enable the defendant corporations to Remove the State court cases to federal court, whereas in the past they couldn't because of the "complete diversity" rule. If you are keeping score, this one goes into the "win" column for big business, and in the "lose" column for the little guy.

So, now you have an understanding of what an "MDL" is. And, you have an understanding of how it works and why it isn't a class action. Knowledge is a powerful thing, and now, as a citizen and a consumer, you are more powerful.

Originally posted at InjuryBoard by Staff Writer

Doctor Faces Manslaughter Charges in Death of Abortion Patient

Kyle Bachus — Tue, 22 Jul 2008 17:59:39 GMT

In a rare move, a Cape Cod grand jury indicted Dr. Rapin Osathanondh on a charge of manslaughter, following the October 13, 2007 death of 22-year-old patient, Laura Hope Smith. While, as Dan Slater noted, “it’s rare that even the most egregious instances of medical malpractice qualify as crimes,” Cape Cod District Attorney Michael O’Keefe told the Boston Globe that during Smith’s surgery, an abortion, “there was an inattention to the kinds of procedures of a lifesaving nature that one would expect in a place where an operation with anesthesia is being performed… There was nobody monitoring her, long enough to result in her death. There were a number of other shortcomings that make up the willful, wanton, and reckless conduct."

The litany of allegations brought by the Massachusetts Board of Registration in Medicine, claim that among these other shortcomings, Osathanondh failed to have someone present to administer and monitor sedation or to assist in resuscitative measures, failed to monitor Smith’s blood pressure, pulse, or heart rate or have oxygen available, failed to timely initiate a 911 call, and “failed to adhere to basic cardiac life support protocol.” Osathanondh is also alleged to have lied to the Board by stating he administered oxygen to Smith and monitored her pulse, that he and the other staff member present were ACLS certified, and that the procedure took place in a different, better equipped room. He is also alleged to have "fraudulently obtained renewal of his medical license by providing false information."

Osathanondh, a Harvard School of Public Health research associate who apparently left a previous hospital “under a cloud of threatened nurses,” is expected to plead not guilty. His attorney told the Globe that “this is a tragedy that sometimes happens in medicine, but it happens; patients die inexplicably in the course of even routine procedures . . . . This is not a matter that belongs in the criminal courts."

Whether it does or not is an extremely close call. That Osathanondh committed malpractice seems to be clear, but where’s the line between medical malpractice and criminal activity? As noted in the comments section at the Wall Street Journal’s legal blog, some facts regarding the type of anesthesia aren’t clear, neither is whether he is charged with voluntary or involuntary manslaughter. Other questions that come to mind: what differentiates this doctor’s conduct from similar egregious forms of medical malpractice? Did the fact that Smith’s death occurred during an abortion play any role in the decision to prosecute? Is the level of care generally lower for these types of procedures? The conclusion that this young woman’s tragic death was avoidable, however, is unquestionable.

Thomas Connell

Summer Intern 2008

J.D. Candidate 2010

University of Colorado

Originally posted at InjuryBoard by Kyle Bachus

Parents Sue Bully. School District Next?

Linda Snyder — Thu, 27 Mar 2008 19:45:02 GMT

I find the whole concept of bullying to be interesting. You get a bunch of kids who decide that another kid is, for whatever reason, is a target for mental and physical abuse. And because bullying has been around since the time of cavemen, it's a somewhat socially acceptable behavior. The school district in Fayetteville, Arkansas may proclaim that they have a zero tolerance policy, but clearly they have chosen to look the other way in the case of Billy Wolfe.

I don't know Billy Wolfe. He may be the nerdiest kid on the planet. He may be the most annoying kid on the planet. He may be the nicest kid on the planet. But nobody should have to endure what he's gone through since grade school. I find it incredible that school officials actually tried to blame Billy for the bullies behavior, claiming "perhaps he brought this on himself."
There are video tapes showing the beatings Billy has suffered at the hands of these bullies, and yet no criminal charges have been filed. So, I guess that means in Fayetteville, Arkansas, if you're a high school student and your victim is Billy Wolfe, then it's not assault. It's just some high school kids having a little fun. If these were adults just having a little bit of the same kind of fun, they'd be in jail right now.

The Wolfes had tried talking to the parents of the bullies and appealing to school officials, to no avail. Now the Wolfes are taking a more aggressive approach, not only are they suing at least one of the bullies, they've also gone public, with Billy's story on the front page on the New York Times and an appearance on the TODAY show. Unfortunately, many times it takes filing a lawsuit in order to secure justice. It's my hope that they hold the Fayetteville school district accountable as well.

And people wonder why the tragedies like Columbine or the Virginia Tech shootings occur. I hope Billy Wolfe would never feel that desperate, but at least he knows his parents are willing to fight for him. What happened at Columbine High School and Virginia Tech will never be okay, but it's a little easier to understand. How much does a kid have to take before he snaps?

Originally posted at InjuryBoard by Linda Snyder

Indifference at Denver County Jail

April Armani — Tue, 26 Jun 2007 17:30:39 GMT

The family of Emily Rae Rice, the twenty-four year old who died needlessly in the hands of Denver County Jail employees, files suit against the City and County of Denver, Denver Health and nearly 50 deputies, jail guards, doctors and nurses.

It is absolutely amazing that in this day and age someone like Emily Rae Rice could die due to the negligent actions of those entities entrusted with the duty to keep inmates alive. On February 18, 2006, the twenty four year old woman died while in custody because she was allegedly not given proper medical attention or treatment. Ms. Rice was booked into the jail after a motor vehicle collision and it was determined that Ms. Rice's BAC was .112.

It is alleged in a lawsuit filed yesterday in Denver District Court that Denver Health and the Jail failed to give Ms. Rice proper medical treatment. The police report from the incident states that Emily was complaining that she was unable to mover her legs In the lawsuit, the family claims that on the afternoon of Feb. 18, 2006, a jailhouse nurse told Rice, whom he suspected of being drunk, to "sleep it off." That same nurse told Rice to "stop being dramatic" when she collapsed during a prolonged check-in, the suit says. By the next morning Ms. Rice was dead. An autopsy found that she had three broken ribs, a 7-in gash to her liver and a lacerated spleen. Emily didn't have to die. If what is alleged in the suit is true, Emily died due to the negligence of others. Let us pray that this lawsuit brings her family peace and resolution to a horrific situation.

For more information on this subject, please refer to our section on Wrongful Death.

Originally posted at InjuryBoard by April Armani

Heelys Cause Injuries to Kids

April Armani — Mon, 04 Jun 2007 13:09:47 GMT

Heelys - a popular sneaker marketed to kids may lead to injures.

Heelys are trendy wheeled sneakers -- a new breed of roller skates, if you will. However fun these sneakers may be, their rise in popularity has also seen a rise in injuries. Even some retail stores have banned them.

For example, over a ten week period last summer, 67 children were treated for injuries due to falls while using Heelys. Desite safety precautions and a how-to manual posted on the manufacturer's website, parents are failing to make sure their children were the appropriate protective gear when "heeling." Parents who buy these shoes for their kids must insist that their children wear helmets, wrist protectors and knee and elbow pads.

Originally posted at InjuryBoard by April Armani

SB 256 Passes

April Armani — Thu, 03 May 2007 12:40:38 GMT

Great news for Coloradoans! After hard work and determination from Darin Schanker and Kyle Bachus, founding partners of Bachus & Schanker, LLC, SB 256 passed the Colorado Senate yesterday with flying colors. In case you didn't know, SB 256 concerns underinsured motorist coverage policies in Colorado. Simply put, the bill takes away the current loophole in the law which allows auto insurance carriers to receive a set off. To read the bill, click here. Click on the next link for a practical example as to how the current bill operates and what the new bill does to changes this and help consumers.

The current law allows insurance carriers to receive a set-off from the amount the victim receives from a tortfeasor (i.e. the one who caused injury)

Look at it this way: I carry 100/300 in UIM coverage on my policy. I am then seriously injured. I make a claim and then settle with tortfeasor for his policy limits of $25,000.00 but my damages are $125,000.00. I then make a UIM claim under my own policy. Under current Colorado law, although I carry 100/300 and have paid my premiums accordingly, and even though my damages are now $100,000.00, I would be precluded from receiving the full 100 under my own policy. In other words, my total recovery would be reduced by $25,000 - the amount I recovered from tortfeasor. Ins. companies get a SET-OFF at my expense and I am not made whole.

What 256 does is close this gap and allows me to "stack" my UIM coverage on top of tortfeasor policy limits so that I get the full benefit of what I paid for - ie 100,000.00.

This bill will drastically increase the total amount of monies (or recovery) available for someone who is seriously injured. It helps Colorado consumers tremendously!

Originally posted at InjuryBoard by April Armani

New Device May Help Football Players Prone to Concussions

Staff Writer — Wed, 17 Jan 2007 19:45:43 GMT

As football season nears its end, researchers are working on a device that may help detect brain injuries, particularly concussions, in football players. Concussions are the most common injury in the sport of football. Each year, over 40,000 high school football players suffer from a concussion due to the sport. This number does not even take into account college and professional football players. Nationally, over 300,000 individuals suffer from a sports related concussion. As more and more football players suffer from multiple concussions during their football career, coaches and trainers are becoming more aware of the growing problem.

Over the years notable NFL players, such as Troy Aikman and Steve Young, have retired from the sport after suffering from multiple concussions. Multiple concussions in an individual greatly increases the risk of permanent brain damage and even death. Brain injuries often show different symptoms each time one occurs because of the complexity of the brain. The symptoms of a concussion vary in each instance and in each individual. This makes it extremely difficult to diagnose a concussion, thus making an individual more prone to multiple injuries.

DETECT (Display Enhanced Testing for Cognitive Impairment and Traumatic Brain Injury) is a devise that works in as little as 7 minutes to diagnose a concussion after an injury. The helmet-like device works by quantitatively comparing the player's response time after the injury to response times recorded when the player was not injured. Researchers working on DETECT are optimistic that the device may also be used to detect other brain trauma related conditions, such as Alzheimer's, with the device. DETECT is still in its initial stages, but researchers hope to have the product on the market within 2-3 years.

Originally posted at InjuryBoard by Staff Writer