I was recently in federal court involving a products liability case. The Judge, during the preceedings, inquired regarding whether or not I actually had the defective product either safeguarded or in my possession. I advised him that I had never pursued a products case when I did not have either possession or access to the actual product that caused injury to my client. He advised me that unfortunately, many other attorneys handling these types of cases could not make the same assurances. The Judge lamented about the number of products cases brought before him where the claimant’s attorney did not preserve the defective product for inspection or production during pre-trial evalutions or at the trial itself.
It is critical that when a person suffers a serious injury from a product that was either defective in the way it was manufactured or designed that it is preserved. There are many times that a product fails apparently due to a design flaw actually also failed from a manufacturing defect. That can be an important distinction when the defendant manufacturer claims that they have sold over million of the identical products without any reported defect inflicting injury. There may be times when the product itself is destroyed due to the malfunction which results in inflicting serious injuries. However, it’s criitcal that the remnants from the product, be collected and preserved. Photographs are not enough. They can be important but are no substitute for the product itself, or what’s left of it, after an injury occurs.
In some of the products cases I’ve handled, I have had to scour wrecking yards for the remnants of defective vehicles to retrieve them before they were disposed of or recycled in order to have the necessary expert evaluations that can be made by comparing the defective vehicles with exemplars. The subtly of the actual defect may not be readily apparent until the damaged vehicle is compared to the same year and model of the vehicle in question. This was how a rear seat pan defect for a client who suffered a broken neck was discovered. Measurements and comparisons helped to identify that the rear seat in the damaged vehicle had moved enough, from inadequate welding, to propell the passeger forward during a very low speed rear end collision. Whether it’s a chair that collapses, or a piece of gym equipment that falls apart or becomes dismantled, or any other type of product that malfunctions inflicting serious injury preserving the actual product will often make the difference between successfully pursing this type of case or losing.
Photo Credit: Walter Ezell, Flickr
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There is no question that a driver under the influence of alchohol or drugs is impaired and a menance to the general public. Crackdowns against these type of irresponsible individuals who inflict unmeasured amounts of heartache and damage to innocent drivers and pedistrians have started to have an impact. The number of drunk driver/impaired auto collisions are lower now. Unfortunately, for many drivers, especially younger ones, impairements to the safe operation of a motor vehicle is occuring from the use of either hand held phones and most importantly, even hands free devices.
Recent studies conducted at the University of Utah concluded that even hands-free, voice activated technologies increasingly being used to access email or social media represent “significant impairments to driving that stem from the diversion of attention from the task of operating a motor vehicle.” As pointed out by David Lazarus, a columnist for the Los Angeles Times, Listening to the radio or talking with a passenger isn’t the problem. However, talking on a cell phone or devoting attention to voice-activated devices poses an extensive safety risk. Not only for the driver distracted but for everyone else on the road. The number of vehicles that can send voice activated messages will increase to over 60 million by 2018. Yikes!
The same outcry by organizations such as Mothers Against Drunk Drivers needs to be mobilized, to educate all drivers, but especially newer ones, that this type of activity can have deadly consequenses. The penalties set by the California Legislature have been insufficent at the present time to have had real impact in reducing this type of conduct. It appears on only be getting worse.
It may very well be that only after substantial jury awards are rendered against distracted drivers that the auto insurance industry will start imposing coverage restrictions and other penalties related to this type of conduct that will encourage drivers of all ages to pay attention to what they are doing and not allow themselves lulled into a false sense of security by engaging in hands free activities that impair their ability to safely drive their vehicle. There may also be liability against individuals who insist on texting individuals who they know are driving at the time they are texting back their responses. This is one type of conduct that should require common sense restrictions instead of expanding tort liability. As a personal injury attorney for over thirty years I have seen the terrible consequences that happen to innocent third parties and to the defendant drivers themselves due to the responsible driver just not paying attention. Driving too fast, while distracted because they had to respond to a text, email, or phone call that just couldn’t wait. It may be time to decide how to spread the word and reinforce the attitude that maybe we all need to take our time when engaged in certain types of potentially hazardous activities,like driving. Even paying 100% attention while driving on most of our freeways during rush hour or other times is no guarantee that collisons won’t occur. It’s really up to what conduct we are willing to accept as reasonable. That maybe it’s better to arrive safely at your destination and then return whatever message was received rather than jepardizing those motorists on the road travelly alongside you.
If you have been the victim of a distracted driver please contact me to discuss the options available to you in pursing the appropriate claim against all of the responsible parties for the drivers loss of control.
Photo Credits: VCU CNS, Flickr.
In June 2009, the “New Chrysler” emerged from Bankruptcy Court and was able to eliminate any responsibility for product defect claims based on either unsafe design or manufacture, with regard to any vehicle sold prior to the date that they emerged from the protection of the Bankruptcy Court.
Not only did this decision wipe out any hope of recovery for those individuals with pending injury claims against Chrysler but it has also shielded Chrysler from suits filed by anyone injured in a future accident which at the time involved approximately 31,000,000 Chrysler vehicles on the road.
At the time that the Federal Government assisted in the bailout of Chrysler and General Motors, it did not make any provision to provide any protection for consumers with pending claims but most importantly failed to protect those individuals who might be affected as a result of undisclosed defects which would result in future injury.
At the time of the automotive bailout, involving both Chrysler and General Motors, it was estimated about 74,000,000 General Motors vehicles were on the road. Federal statistics show that approximately 5,900 people were killed in crashes involving Chrysler vehicles in 2007. The concern by knowledgeable skeptics, at the time that Chrysler obtained their bankruptcy relief was how it would affect the future claims for undiscovered vehicle defects.
Evidently, everyone’s worse fears have been realized with the discovery of the approximately 2.7 million vehicles who are currently at risk of a fuel tank fire in a rear-end collision. Chrysler has refused the Federal Government’s request to recall the Jeep Grand Cherokees that were manufactured from 1993-2004 and the Jeep Liberty that were manufactured from 2002-2007.
Unfortunately, the government’s failure to have properly protected the American consumers, in connection with the massive automotive bailout that was funded through taxpayer monies, also abandoned the consumer protection.
Although Chrysler has refitted the Grand Cherokee’s in 2005, as well as the 2007 Liberty, it estimates that retrofitting the older Jeeps, with repositioned tanks, would be both time consuming and costs over $240,000,000.
Unfortunately, there does not appear to be an optimistic solution to this extremely significant safety problem. Chrysler previously refused to accept theNational Highway Traffic Safety Agency requests that it recall 91,000 Dodge Stratus and Chrysler Cirrus vehicles to rectify an alleged seatbelt defect. Although NITHSA has successfully sued Chrysler in Federal Court, in 1998, that decision was reversed on appeal. Chrysler’s lawyer in that case, on appeal, was John Roberts, who is now the Chief Justice of the United States Supreme Court.
Unfortunately, this is just one other indication, of how large companies are able to obtain maximum influence to avoid responsibility for their failure to have complied with the appropriate government safety guidelines to protect the American consumer.
I have been holding automotive manufacturers accountable for the safety defects contained in the vehicles, which have inflicted significant and usually catastrophic injuries to my clients. I don’t believe that there is any more serious safety defect than the lack of fuel tank integrity.
As we all know, after the Fuel Pinto case, when Ford neglected to have a $10.00 part which would have significantly protected against fuel tank rupture from rear-end collision, these defects produced horrendous and catastrophic injuries on the occupants of the vehicles that failed.
Unfortunately, in this instance, the legal rights and remedies that were available to hold Chrysler accountable have been erased by the blank check that they were given during the governmental rollback that rescued their company from oblivion.
Hopefully, Chrysler will reconsider its position, in light of the significant relief that they have received, in order to eventually comply with the government’s request to rectify this extremely serious defect.
Photo Credits: Motorclan, Flickr.
San Diego is actually at the epicenter for the development and wide scale application of the policies implemented under what has been referred to as “Managed Care,” which is the system now in place for those of you who have health care coverage, group or individual, that covers you and your family. The original idea was that costs associated with the medical treatment doctors were charging was too high. So the Health Care Insurance Industry started placing requirements that required various medical tests, treatment and even surgical procedures under the review of their employees, most of them not even medical doctors or formally medically trained to assess whether the doctor’s recommendation should in fact be followed. Now you would have some independent contractor who is compensated based on what they save the company, deciding whether the patient really needs the M.R..I. prescribed, or the surgery recommended.
This started having significant results, however, the medical providers were upset about having their decisions reviewed by unqualified individuals. The Health Care Insurance Industry then came up with the brillant idea of compensating the medical providers by the amount and treatment they didn’t provide. Called Non-Utilization Bonuses, hospitals and medical providers started receiving huge amounts of money when they achieved targets set by the Health Insurance Industry for the treatment that they opted not to provide.
The next step was the way that medical providers were paid for services provided under the Health Insurance Contract. The major health insurance carriers negotiate with each hospital and medical group that would like to be covered as an authorized provider for the unions, employers and other groups that have paid premiums for their members to be covered under. The medical provider agrees to provide various services at a reduced or capitated rate, below the amount listed or authorized as the reasonable charge in C.P.T. codes (published lists of accepted fees for specific medical procedures). To offset the discount that the providers have agreed to, in order to gain access of the subscriber of a particular health plan, the insurance carrier also pays them a fee based on the total amount of the subscribers who would be potential patients if they ever became ill or injured. The hospital and medical group, selected by the subscriber, when they sign up for the coverage, is paid every month whether they ever see any of the enrollees or not. The kicker is that if a covered individual actually has to receive medical care then the facility agrees to absorb the amount of their care up to a certain limit. It can range from just $5,000 up to $100,000. The medical group takes the risk that only a small percentage of the potential enrollees who select them will ever actually require medical care that they have to provide but will not be compensated for. That’s one of the reasons why when a person selects a medical group they are required to sign a form that requires the medical group to be reimbursed for the cost of the medical care provided in the event that the patient has been injured through the fault of another. The reimbursement requirement does not offset the cost of the premiums that the patient has previously paid. It also can be required even though there is inadequate insurance coverage for the individual who is responsible for causing the patients injury and need for medical attention.
This system actually encourages medical providers not to treat their patients. It’s the reason why patients are sometimes told that their treatment is not covered when it’s needed due to an accident. That is absolutely untrue, there is no health care coverage that does not apply when needed due to trauma, whether the patient has a claim or not. Patients are also discouraged from receiving appropriate referrals to specialists, or having M.R.I.. testing to diagnosis whether the nerve pain experienced is due to protrusion from a herniated disc, or physical therapy that continues until the patient has fully recovered, if improvement is happening. Not just an arbitrary amount of sessions authorized regardless of actual results.
Unfortunately, these problems have permeated and undermined the quality of the medical care available today. A person who receives medical coverage as a benefit of their employment or who pays their own premimum should not have to worry that their medical provider is influenced by the contract they’ve entered into with the patient’s health care insurance carrier. It is critical that patients refuse to be ignored or mistreated when their medical complaints are not properly diagnosed and treated. Attorney Gary Sernaker has been protecting the rights of his clients to fight for their right to receive the quality of care that they have paid for are entitled to. If you feel that your medical group is not doing what is necessary for you to recover from an injury please contact him for a free consultation.
Photo Credits: Mercy Health, Flickr.