RESULTS DEPEND UPON FACTS OF EACH CASE; SIMILAR CASE RESULTS NOT GUARANTEED

According to Consumer Reports, car seats for infants (the rear-facing seats for infants up to about one year in age) usually fail in broadside crashes — 10 of 12 models tested failed, some “disastrously” (the seat often separated completely from its base). One popular model — the Evenflo Discovery — failed not just in broadside collisions but also in head-on collisions.

One possible explanation for the failures: the manufacturers are only required to test infant seats in head-on collisions, despite that about 30 infants in the United States die each year in broadside collisions.

Parents are cautioned, however, that holding an infant in your arms during car travel is not a safe alternative.

If you — like many personal-injury victims — are taking over-the-counter (OTC) pain medications, you need to be aware of new proposed FDA (Food and Drug Administration) warnings.

On January 2, 2007, the Washington Post reported that the FDA has proposed stronger warning labels on over-the-counter “painkiller” medications, especially because of the risk of liver and stomach damage. These warnings would apply to all OTC medicines containing acetaminophen and nonsteroidal anti-inflammatory drugs (NSAIDs), including aspirin, naproxen and ibuprofen (in popular products such as Tylenol, Aleve, Motrin, Advil and Tylenol Arthritis Pain).

These medications — often used to treat headaches and muscle pain/discomfort — should be taken at the lowest dose possible for the shortest time possible, especially if one is taking any other medicine(s). There are additional known hazards when mixing alcohol with any of these medicines.

In another post to this Blog, I lamented both the bias against any plaintiff and the especial bias against any plaintiff suing a doctor or hospital for medical negligence:

Virginia’s not being on this list of “judicial hellholes” is no surprise to Virginia judges or the trial lawyers for the plaintiff and defense. Each of them knows that an injured plaintiff in Virginia has one hand tied behind his back and two strikes against him when he first comes to bat in court. Candidly, this does not apply to victims of medical malpractice in Virginia, who have two hands and two feet tied-up, and who can be seen limping-up to the plate and then simply heading back to the dugout without taking a swing.

In the January 2, 2007 issue of The New York Times , Jane Brody recounts the extent of the problem of medication errors in America:

Traffic deaths in the United States in 2005 — 43,443 — reached their highest levels since 1990, according to government statistics cited by the Insurance Journal, The increase was more than 1 percent compared to 2004.

This increase was attributed in part to increased deaths from motorcycle and pedestrian accidents. One possible explanation for the spike in this particular segment of the population is that — as our urban/suburban populations rise, and our roads and highways become more crowded — we as drivers focus most on what endangers us — the bigger, looming objects on the roads like trucks and SUV’s — and we don’t look for or just don’t see the smaller figures on the roads like motorcyclists and pedestrians.

The lessons to all of us? Driving is not just about protecting ourselves; it’s also about looking for and protecting others, especially those who most need our protection — like the elderly pedestrian who is not alert or the child running mindlessly across a neighborhood street.

Here’s a novel idea for the Bush Administration: the next time a Virginia jury considers the proper amount to award a Virginia citizen severely injured by the carelessness of another, the jury should consider … the facts of the specific case … rather than the Bush Administration’s talking points for the insurance industry that are meant to prejudice a jury and keep it from its solemn duty to … yes, consider the facts of the specific case before the jury.

The Bush administration recently has added to its growing stockpile another claim based on false data. Treasury Secretary Henry M. Paulsen Jr. stated that “the broken tort system is an Achilles heel for our economy.” Paulsen based his opinion on a “study” by an insurance industry consulting firm.

It seems that the study includes the cost of the insurance industry itself – multimillion dollar salaries for insurance CEOs, rent on office buildings, and administration overhead – in the “cost” of the legal system. Business Week called the study “a wild exaggeration,” and The Wall Street Journal stated that the study “includes payments that don’t involve the legal system at all.” The Journal concluded that payments from a careless driver to somebody who has been legitimately wronged is not evidence of a “system run amok,”

No, Virginia, your jury verdicts for injured men, women and children are not excessive or “out-of-control.”

The American Tort Reform Association — “ATRA” — has published its list of “Judicial Hellholes” of 2006 … and, Virginia, you are not on its list. You are not even an “Honorable Mention,” and you are not even on the “Watch List.” One sure way to get on the list? Allow runaway jury verdicts.

No doubt Virginia’s absence from this list will come as a great surprise to Virginia jurors who long have been besieged with the cries of ATRA and the insurance companies and corporations to the effect that jury awards for the injured are “everywhere” out-of-control.

A Circuit Court Judge in Virginia recently commented to me and other counsel that the defense of sudden emergency is “dead” in Virginia. I think the Judge was being somewhat facetious in order to underscore the significance of a recent Virginia Supreme Court decision, but the question remains — does sudden emergency still exist in Virginia?

On September 15, 2006, the Supreme Court of Virginia announced its decision in Herr v. Wheeler , 272 Va. 310, 634 S.E.2d 317. In that case Wheeler loses control of her vehicle in heavy rain when it hydroplanes on the wet roadway and suddenly crosses into Herr’s lane of travel. Wheeler had known of the slipperiness of the roadway, and was being “cautious.” The Herr Court (at 288) found that the trial court erred in granting Wheeler’s request for a “sudden emergency” instruction, holding that:

[W]hen abnormal conditions are known and the heightened hazards they create are reasonably foreseeable, the standard of ordinary care the law imposes is higher. Where nature has created hazardous conditions on a highway, and such hazardous conditions are open and obvious, the operator of a motor vehicle is required to take care in the operation of his vehicle proportionate to the known dangerous condition of the highway.

If you are a personal-injury lawer in the conservative state of Virginia or elsewhere in the land of tort reform, this is my admittedly provocative view — employed by my firm over the past six (6) years or so — of how to obtain just personal-injury settlements for your clients:

1. Don’t just dabble in personal-injury cases; the insurance defense lawyer is too good for that, and he will only smile as he runs over you while you are dabbling.

2. Study and read about how to be a better trial lawyer. If you don’t enjoy much of what you are reading, try something else (not just another book; try another line of work).

If you have been a trial lawyer for long, you likely have heard of Gerry Spence’s famous final plea in just about every closing argument . From his latest book, Win Your Case, Spence speaks to the jury on behalf of little Polly:

Before I leave you I want to share with you a story I tell in nearly every case. It’s about transferring the responsibility of the case from us, on behalf of little Polly and her parents, to you, the jury.

It’s a story of a wise old man and a smart-aleck boy who wanted to show up the wise old man as a fool.

Marlo said she was injured in the accident. As her attorney, I believed her. But Allstate Insurance Company just knew that it could push her around. Allstate’s insured said that her car was barely moving when it hit Marlo’s. The only exterior damage to Marlo’s car were scratches on her rear bumper, without dents. Marlo claimed back pain, but she had complained about back pain a couple of months before the accident. Marlo had no medical expenses or lost wages. Her treating doctors largely dismissed her injuries and would not cooperate or testify at the Loudoun County, Virginia trial. Marlo went to a doctor outside her plan who told her that she would need some medical treatment — not now, but as she got older.

Allstate’s insured swore in writing that she had $100,000 of liabililty coverage. Marlo demanded settlement for the coverage limits. Allstate did not respond and made no offer.

Shortly before trial its insured swore in writing that her liability coverage was not $100,000 but only $25,000; and Allstate produced a declaration page verifying $25,000 in coverage. Marlo then demanded the $25,000 coverage, giving Allstate a short deadline by which to respond and stating that after the deadline she would not extend or respond to any settlement offers. Allstate did not respond and made no offer.