Hello, and welcome to Bernie's Blogs!! My name is Bernie Tully. I am a Pennsylvania attorney who practices personal injury law and criminal defense in the Pittsburgh area. My law practice covers Allegheny County, Westmoreland, Beaver, Butler, Washington, Greene, Erie, Armstrong Counties and other counties throughout Western Pennsylvania. I am 58 years old. I am happily married to my wife Michelle and we have 5 children.
I have been a licensed lawyer in the state of Pennsylvania since 1979. That means I have been practicing law for over 30 years. I worked 5-1/2 years as an Assistant District Attorney and had the opportunity to try hundreds of jury and non-jury cases. After working in the Allegheny County District Attorney's office from 1979 thru 1985, I decided to change course and join a personal injury law firm in the city of Pittsburgh. I worked there for a couple of years and gained valued personal injury experience in the area of personal injury law.
In 1987, I decided to go out on my own, hang a shingle and practice primarily personal injury law and criminal defense. I have been practicing in those two areas consistently since then.
In addition to myself, I have two excellent Paralegals, Angela and Denise. They help me immensely with cases from our initial sign-up to the completion of the case and/or settlement. Angela is also my Administrative Paralegal. She makes sure I don't bounce any checks. In addition, I have two investigators who we use to get to the scene of an injury or obtain other evidence in terms of witness statements and authorizations from the appropriate parties.
Mary, my secretary, is the first person a client talks to when they call my law office. She directs the calls to the appropriate person in our office. Angela, Denise and Mary are extremely dedicated, honest, competent and loyal.
I must say that this arrangement has worked out very well. There are no real personality conflicts at work. We all get along very well together. Additionally, we have been together for many many years and I hope we continue to do so for a long time into the future.
What is the purpose of Bernie's Blogs? The primary purpose is to periodically write about issues in the personal injury and criminal defense field, and to take a somewhat lighter approach to the practice of law than you will find in other areas of my website. I do not expect you to agree with everything I say in Bernie's Blogs. In fact, I welcome opposing views on any of the issues that we will be discussing.
Please contact us with any ideas or comments you have about anything in this blog. We love getting your feedback!
What's in it for you? May I suggest to you that if you consistently read Bernie's Blogs you will learn a lot about Personal Injury Law and Criminal Defense Law. Also, you will find my Blog somewhat entertaining.
With that as a basis, let's get started.....
February 21, 2011
Personal Injury Law
INJURY CASES AND LOVE
I signed up a personal injury case referred to me by a prior client the other day. The client, Anne, has cancer and is only in her early 30's. She was injured while being placed into an ambulance to go to the hospital. Instead of the ambulance service using a stretcher to lift her into the back of the ambulance, they tried to push her into it. When they pushed her, her bones were so brittle, that she broke her arm. She later had to have surgery at Mercy Hospital because of the arm fracture.
Because she has no one else in her life, she has been staying with her sister. When I met Anne at her sister's house, I was shocked. They were living in near poverty. There were about six people living in a very small, probably two bedroom house. Everything about the house seemed to be falling apart. I almost tripped coming up the steps to the house. The house had very old furniture, probably 25 years old or so, and a half broken TV. I really did wonder how anyone could survive in that type of home environment.
However, what I really found in that house was love. First, was Anne's sister, who voluntarily agreed to take Anne in and has been caring for her since her disease began. There was also her sister's boyfriend who was staying there. The whole time I was there, he was helping other people and helping Anne in her misery. Their children were extremely well behaved and you could just feel that these children had been brought up right. By material standards, they were in abject poverty, but you really felt that the children were learning the values of what is really important in life. One of them came up to me while I was taking notes and offered me popcorn.
I must say I was dumbfounded when I left that house. I kept wondering about all the emphasis our society and I place on material wealth, and position and power. Having the best house, the best furniture and the best cars and living in the best neighborhoods often defines success. But it really struck home to me, no matter what the situation, where there is love, that is all anyone really needs.
I couldn't help but thinking back to another article that was in the Post Gazette recently about Troy Polamalu, the Pittsburgh Steelers outstanding football player. He was named defensive player of the year. However, even during Super Bowl week, he, thru his church, was trying to help to establish a center for homeless and poverty stricken families in the Pittsburgh area. I think he was quoted in the paper as saying he always was more comfortable with poverty stricken or homeless people, than he was with others, because he could relate to them. That message really struck home to me when I met with Anne and her loving, giving family.
I don't know if we will win Anne's case or not. I don't know if we will get a recovery for the injuries that Anne has sustained or not. But I do feel extremely fortunate that the lesson of love was reinforced to me by meeting Anne.
God Bless you Anne and your wonderful loving family!!
February 20, 2011
Criminal Defense Law
THE VALUE OF PERSISTENCE
The other day I was up in Indiana County to represent a client in a criminal case. He was charged with a host of crimes, including corruption of minors. My client is 19 years old and has no prior record. At the Preliminary Hearing, the Assistant District Attorney said that he could offer me no more than straight probation, based on the allegations. The problem with entering a plea to corruption of minors and getting probation is, of course, that my 19 year old client would have a criminal record for the rest of his life. Realistically, any time he went for a job, and it came up to the employer what he was convicted of or plead guilty to, namely corruption of the morals of minors, it would be unlikely that he would get the job.
I was sitting in the Courtroom, about to enter the plea to the charge, when I decided to go downstairs to the District Attorney's office. I met with the Indiana County District Attorney himself and talked to him about the problem, as well as what my concerns were for my client's future. Incredibly, the Indiana County District Attorney said that he would review the file and that he understood my concerns. Further, he said he would not oppose allowing my client to go into the ARD Program, provided that the victims did not object.
This is an example about what I should do in every case. A lot of times I don't. It really does come down to attorneys being persistent and really doing everything possible, legally and ethically, to represent their clients in the best manner they can.
I don't know if he will get into the ARD Program or not, but I do know it felt good when I was driving home to Pittsburgh from Indiana, knowing I did everything I could to help the client. Trust me when I say I don't always feel that way after a client's case is over. A lot of times I feel like, if I had just done one thing or another better or been more persistent, I could have got a better deal for my client. Then I feel guilty for letting the client down. I am not at all unusual in this regard. Most criminal defense attorneys feel that way in representing their clients. We want to do the best we can and sometimes we are successful and other times we fall short.
February 16, 2011
Criminal Defense Law
JUDGE DOES THE RIGHT THING
In early February, 2011, I went up to the Armstrong County Courthouse for an ARD hearing for my client. ARD is for first time offenders with no prior record, where they are accepted into the program and, if they successfully complete the program, it results in a dismissal of the charges.
Judge Pancik was the presiding judge at the ARD hearings, and there were probably 25 individuals eligible for the program that day. When the Judge came out on the bench, he began explaining to the 25 people their eligibility for the program. One of the potential ARD defendants was a young mother of two. She couldn't have been more than 21 years old. She went in to the Court that day with her two small children. I overheard her talking to the Public Defender that she wasn't able to get a babysitter.
Well, the hearing begins, there is a roomful of people and, of course, what happens is that both kids start screaming when the Judge is talking in open Court. Now you have to understand that a Judge in his Courtroom has absolute power. He can banish or punish or humiliate anyone he chooses to in his Courtroom. There are judges who abuse their position of authority like this and it's not pretty to see.
In this case, Judge Pancik recognized what the situation was, namely that it was a young mother with a slew of problems and not enough money to even afford a babysitter, who was forced to bring her children into the Courtroom. She had no control over her children screaming. Instead of making a big scene and asserting his power, by humiliating the girl in front of everyone, which he definitely had a right to do, Judge Pancik took the high ground. He patiently went thru the Colloquy for all the people. Then he made sure that the young lady's case was the first one heard, so that she could be accepted into the program and leave the Courtroom with her two children. I was most impressed with the way he handled the situation.
Every day an attorney is in the Courtroom, he gets to see how Judges react to situations. Sometimes they act nobly, like Judge Pancik, and other times they don't. It was very heartening to see Judge Pancik taking such a humane approach to the situation.
Yes, in case you were wondering, my client was accepted into the ARD Program!!
February 15, 2011
Personal Injury Law
MENTAL HEALTH RECORDS
Let's assume you are a Plaintiff and you sue someone for your injuries, including knee surgery, leg surgery and neck injuries.
Additionally, you claim emotional distress, anguish and anxiety from the injuries you sustained. Those are pretty standard allegations in most personal injury cases. The question is, under those circumstances, would the defense be entitled to get your mental health records as part of its case?
In Gormley vs. Edgar, the Pennsylvania Superior Court held that where a person makes an allegation in the Complaint that she sustained anxiety as a result of the accident, the Plaintiff has put her mental status at issue. As such, the defense is entitled to discover your pre-accident mental health treatment records. It is important to keep in mind that anxiety is a recognized mental health disorder.
The Superior Court decision said that the ordinary and general allegations of shock, mental anguish and humiliation, which often are plead in personal injury complaints, are not sufficient in themselves to place a person's mental condition at issue or allow the defense to get the victim's mental health records.
I think this case illustrates how important it is to carefully draft our personal injury complaints, so as not to expose our clients to these types of discovery requests.
February 14, 2011
Personal Injury Law
WORKER WHO UNLOADED RAW ASBESTOS AWARDED $1.2 MILLION BY JURY
Mesothelioma is a cancer that affects the lung casing, so a patient gradually suffocates to death. It is a terrifying, horrible disease. How much should be awarded to a forklift driver who had to unload bags of raw asbestos for six years as part of his job? The jury was faced with that question and awarded $1.2 million to the forklift driver, against Union Carbide which mined and sold the asbestos. Unfortunately, the award came two years after the worker died.
The Plaintiff argued that Union Carbide knew about the link between asbestos and mesothelioma as early as 1967, two years before the forklift driver began working with the product. Incredibly, Union Carbide, instead of stepping up and admitting what they did, tried instead to shift the blame to the forklift driver's employer. Union Carbide actually argued that it was up to the forklift driver's employer, National Gypsum, to warn about the risk of asbestos.
If you were on the jury and heard that defense, how would you feel about that argument?
In my opinion, the genius of the jury system in America is that it allows common everyday people like you and me to decide issues like this.
February 12 & 13, 2011
Personal Injury Law
JURY AWARDS $8.7 MILLION TO CASINO DEALER
INJURED IN HIGHWAY CRASH - PART I
Lawyers USA in November, 2010 reported that an Atlantic City, New Jersey jury found the Highway Authority dispatchers and State Police negligent in responding to a multi-car crash that severed a casino dealer's leg. The victim, Janet Henedema, a 37 year old dealer at an Atlantic City casino, was driving home in the morning of December 4, 2005. At that time, the car skidded out of control on the Atlantic City expressway during a snow storm. She was hospitalized for 6 weeks, underwent multiple surgeries, and her right leg had to be amputated due to the accident.
What is so special about this case? The answer is the incredible amount of work that the injured party and her attorney did to convince the jury to give the award. Think about it. The defense obviously argued that the collision was the result of the weather. Their argument was how could they be responsible for the bad weather? They claimed that the unexpected bad weather caused the injuries to Ms. Henedema.
However, Ms. Henedema was able to establish that the radio dispatchers prioritize calls and the second highest priority is a traffic accident with injuries, that pose a potential traffic hazard. Lawyers USA reported the transportation authority dispatchers never told the State Troopers that the initial accident was a potential traffic hazard. They instead relayed the wrong information to the troopers, telling them that the accident was in the eastbound lanes, not the westbound lanes of the highway. Further, the dispatchers failed to notify the State Troopers that local townships offered to help.
The Plaintiff argued that if the authorities had instituted a traffic management plan, and not allowed people to come up the hill where the victim was injured, the road would have been effectively shut down. The question is how to convey that to the jury in a logical manner?
February 12 & 13, 2011
Personal Injury Law
JURY AWARDS $8.7 MILLION TO CASINO DEALER
INJURED IN HIGHWAY CRASH - PART II
You have got to admire how the Plaintiff's attorney did this.
First, he had to get the 911 calls. He was told that the 911 communication was corrupt and could not be produced. Through Discovery and filing Motions and other innovative techniques, he was able to get the audio portion of the communication recovered, and then he began to piece together the location of the officers and the times of the calls. Counsel then had to work with an audio-visual consultant to recreate the transportation authority's communication system for the jury. He was successful in doing that, so the jury heard the 911 tapes.
Next, Counsel had to hire an accident reconstructionist to create how the accidents occurred and help the jurors understand the timing and sequence of the various accidents.
The Plaintiff also had to show the jury what was happening at the dispatch center and where each trooper was during the course of the evening. This helped to establish the proximate cause of the accident, which was the dispatch center's failure and the State Police improper supervision of the dispatch operators.
I think this case really highlights what an affective personal injury trial attorney does to establish negligence on behalf of his clients.
Most jurors, when they saw pictures of the hazardous, stormy conditions on the Atlantic City expressway, probably thought to themselves, well there is nothing that authorities could have done about this. It was a storm and driving was extremely hazardous anyway. However, by being able to logically explain the sequence and timing of the actions of the dispatchers, the Plaintiff was able to show the jury it was not the severe weather or the storm that caused Ms. Henedema to have her leg amputated. It was the failure of the authorities to follow their own procedures for this type of weather and prioritize calls, that caused her injuries.
I am sure that many attorneys turned down this case when they saw pictures and photos of the hazardous weather conditions on the roadways. Likely, they too thought the victim's severe injuries were caused by the weather and not human error.
My hat is completely off to this remarkable New Jersey attorney who successfully won the case for his client.
What do you think about this?
February 8 & 9, 2011
Criminal Defense Law
LEGAL TECHNICALITIES - PART I
Is Burglary a crime of violence? The Pennsylvania Superior Court in Commonwealth vs. Gonzalez had to decide that issue. It is a very interesting opinion. The Defendant plead guilty to Possession with Intent to Deliver heroin. He was sentenced to 2-1/2 to 6 years in jail for the offense. The judge denied his request to have his sentence designated as a RRRI minimum sentence. RRRI deals with a Defendant's recidivism (that he is a repeat offender). If the sentencing judge designates the sentence as a RRRI minimum sentence, then the Defendant will likely get out of jail much sooner than if the Defendant is not designated as RRRI (repeat offender).
In this case, the judge refused to make the designation because the Defendant had a prior conviction for burglary, graded as a 2nd degree felony. That Burglary involved entering a building or occupied structure with the intent to commit a crime therein when the building entered is not adapted for overnight accommodations and no individual is present at the time of the entry). Again, in order to be considered for a reduced sentence, the Defendant has to prove that he does not have a history of past violent behavior. The judge in that case determined that the Defendant did have past violent behavior because of the F-2 burglary conviction.
February 8 & 9, 2011
Criminal Defense Law
LEGAL TECHNICALITIES - PART II
Up the case goes to the Pennsylvania Superior Court. The Court ruled that an F-2 burglary does not involve the risk of violence or injury to another person: rather it is an offense against property rights of the owner of the property in question.
Burglary can only be considered a crime of violence if the structure involved is adapted for overnight accommodations in which, at the time of the offense, any person is present. Therefore, the Court ruled that an F-2 burglary cannot be evidence of past violent behavior under the recidivism statute and overruled the sentencing judge's term of imprisonment.
This illustrates how technical Statutes and interpretations of Statutes are today. Sometimes the difference between a very long criminal sentence and a relatively short one hangs on the interpretation of a few words in the Crimes Code.
What do you think of this decision? Was it the right one?
February 5, 2011
Personal Injury Law
DEER REMOVAL AND INJURY CASES
Here is a strange one. Suppose you are driving on I-80 and you hit a deer. You pull over to the side of the road and some time elapses. While you are on the side of the road, another car comes by and strikes the deer that you initially hit. The other driver is severely injured as a result of hitting the deer which was laying in his lane of travel. Can you be sued for not removing the deer, that you originally hit, from the roadway? After all, if you hadn't hit the deer, it wouldn't have been laying in the roadway and caused the injury to the second driver, who struck the deer on the highway.
The fact pattern that the Court recently had to consider in deciding this issue turned on the duty of the driver, as an element of negligence. Basically, the Court ruled that you did not have an affirmative duty to remove the injured deer from the travel lanes. If there is no duty, then there is no negligence.
The Court ruled there is no duty upon a motorist to remove a deer from the highway. The Court reasoned that such risk imposes a great safety issue and it would be unreasonable to hold the person responsible under this situation.
What do you think of this decision?
February 4, 2011
Personal Injury Law
RUMBLE STRIPS AND THE RIGHT TO RECOVER MONEY
The Pennsylvania Supreme Court has already decided the case of Dean vs. Department of Transportation and decided that Penn DOT does not have a duty to erect guardrails on its roads. Penn DOT's failure to erect guardrails on its highways does not give an injured party the right to recover money from them.
Okay, but what about Rumble Strips? The Pennsylvania Commonwealth Court on January 19, 2011 decided that issue also. It is an interesting fact pattern. In Brown vs. Department of Transportation, Karen Brown was a passenger in a car driven by John Hughes. Hughes fell asleep at the wheel causing the car to miss a curve in the road. It struck a low retaining wall and fell 40 feet, causing severe injuries to the passenger Brown. She sued Penn DOT claiming it was negligent in failing to place rumble strips along this portion of the road adjacent to a steep drop. Does Penn DOT have a duty to put rumble strips in and around the area of dangerous steep drop-offs?
The answer is no. The Pennsylvania Commonwealth Court ruled that Penn DOT had no duty to install rumble strips on the road where the accident occurred. The Court ruled the absence of rumble strips did not cause the accident to occur. Rather it was the driver falling asleep that caused the accident, not because there were no rumble strips to wake him up.
I think it is pretty clear that Courts are strictly interpreting the sovereign immunity laws in Pennsylvania and if you are going to successfully sue Penn DOT, your fact pattern had better fall within one of the noted exceptions to sovereign immunity.
February 3, 2011
Criminal Defense Law
ALLEGHENY COUNTY TAKES ENLIGHTENED APPROACH TO VETERANS' PROBLEMS
Allegheny County, along with other surrounding counties, has taken an enlightened approach to dealing with Veterans charged with crimes as a result of issues related to their service to our country. For example, Allegheny County now has a court called Veterans Court.
Veterans Court is a treatment Court designed to serve the ends of justice involving veterans who are struggling with addiction or substance abuse problems, mental health issues, and reintegration issues. Mental health issues include Post Traumatic Stress Disorder, Traumatic Brain Injuries, or other types of verified medical diagnosis.
The goal of Veterans Court is to help those people who have served our country honorably by getting those individuals who need help to the appropriate services. Veterans Court involves intensive treatment and support while the individual is under the supervision of the Court. It is often seen as an alternative to jail time for veterans who have fallen into trouble with the law.
The goal of Veterans Court is to have a low recidivism rate for veterans who graduate from the Court so that valuable resources are not tied up in future problems with the law. There is a specially assigned judge, the Honorable John A. Zottola, for Veterans Court.
Judge Zottola also heads the County's Mental Health Court. I have known Judge Zottola for a very long time and I believe he is a caring compassionate jurist who is also an outstanding judge.
How do you quality for Veterans Court? In order to qualify for Veterans Court, the Defendant must be 18 years or older, and be a current military member in good standing and who has not been dishonorably discharged. The individual must have a documented qualifying Axis One diagnosis. That is just a fancy word for a medically diagnosed condition such as Post Traumatic Stress Syndrome or Traumatic Brain Injury as noted above. Other factors to consider would be Schizophrenia, Bi-Polar Disorder, Psychotic Disorder, or major Depression.
In order to be involved with Veterans Court, the Defendant must voluntarily participate in the program. The idea is to put these individuals in contact with social agencies and groups that can help them deal with their problems. They are also overseen by the Court to make sure that they are compliant with any treatment suggested.
I highly applaud the efforts of the Veterans Court to deal with issues unique to veterans. After all, they are the ones who have served and protected and risked their lives in places like Iraq and Afghanistan and long ago in places like Vietnam.
Finally, Veterans Court does not involve a free ride. The person who is in the Veterans Court still has a conviction for their actions and there are consequences for it. It is, however, an alternative to the traditional jail setting for certain types of offenses.
How does one apply for the Veterans Court? You must fill out an Allegheny Veterans Court form. It is a one page questionnaire and it is submitted to the appropriate authorities for their review.
Our office has copies of the Allegheny County Veterans Court Referral form and I can provide a copy to you. Please call me at 800-491-4996 and I will get it to you asap.
February 2, 2011
Personal Injury Law
NURSING HOME LITIGATION
In the January 25, 2011 edition of the Legal Intelligencer there was an article authored by two attorneys, William Mundy and John Skrocki, from the law firm of Burns & White. They reviewed the Pennsylvania Superior Court, July 15, 2010, opinion of Scampone vs. Grane. That case has been widely written about because it changed the landscape for nursing home liability in Pennsylvania.
Madeline Scampone was admitted to the Highland Park Care Center which is a skilled nursing facility in 1998. Between the periods of December, 2003 and February, 2004 when she died, the Plaintiff alleged that as the result of neglect, primarily due to under-staffing, Ms. Scampone developed urinary tract infections, dehydration, malnutrition and bed sores. These were substantial factors in causing her death at the age of 94.
The complaint alleged corporate liability against the corporate facility and also Grane, the healthcare company, the management company. The jury gave the Plaintiff a total award of $193,000.
On appeal, the Pennsylvania Superior Court reversed the lower Court's ruling and held that a skilled nursing facility can be held liable under the theory of corporate liability. Further, chronic under-staffing can form the basis of a corporate liability claim. Lastly, a punitive damage claim could also be made against the Defendants Highland and Grane.
This decision was the 1st Pennsylvania Appellate level case to extend the theory of corporate liability to long-term skilled nursing home defendants. The opinion compared nursing home care of its residents as akin to that of a hospital. As such, the Pennsylvania Superior Court decided that corporate liability can be applicable to this situation. What the Scampone case did was to open up a new area for direct corporate liability against a licensed nursing home operator. Also the hiring of sufficient staff to operate the facility is recognized as part of the generic corporate duty.
Thus, you can see why this is such an important decision. What Plaintiffs and representatives of nursing home residents can now claim is that due to the chronic under-staffing, that the owners of the facility can be held liable under the corporate theory.
Finally, the opinion is important because it basically held that corporate Defendants in nursing home cases have a duty to formulate and enforce policy to insure quality care of its residents. Nursing homes cannot simply incorporate and distance themselves from the day-to-day operations of the facility.
I think this decision makes a lot of sense. If residents and family are going to pay hard-earned money to allow their loved ones to stay in a facility, then it is incumbent upon the corporate structure of the nursing home facility to at least insure that the residents are treated with care and competence.
We have all seen situations in hospitals where one or two nurses have to cover an entire floor of 40 or 50 patients. Simply put, this decision emphasizes that it is not acceptable in nursing home situations.
I welcome any nursing home questions you might have. Email me at bernard.tully@verizon.net.
February 1, 2011
Personal Injury Law
LINKED-IN SOCIAL MEDIA AND LAWYERS
On February 1, 2011 I attended a Seminar on Social Media. The primary focus of the seminar was on Linked-In. Linked-In is often used by professionals to contact and interact with other professionals regarding job availability, changes in the law and other types of ideas.
I must say it was a very informative morning session. The seminar was sponsored by the Allegheny County Bar Association and the meeting occurred at the Bar Association headquarters in the Koppers Building in Pittsburgh.
One of the things I took away from the seminar was the overwhelming amount of sources available to interact with the public. Everything from Facebook to Linked-In to My Space to Twitter is often encouraged by media experts who attempt to get the attorney's message out to the public according to the speaker.
I think the other message I took away from the seminar is that, like it or not, our society has moved from the printed word in the form of newspapers to the Internet and social media settings.
Like most attorneys, the biggest fear I have of getting involved with the social media outlets is the enormous amount of time involved in constantly updating and linking material to the source. I was not at all surprised that the majority of the attorneys who were at the seminar did not have a Linked-In account and if they had a Facebook page at all, it was not used very much.
Believe it or not, at one point the sponsors of the seminar even said to the participants, including me, if you want to, we can set up a Linked-In account for you right now during the seminar. Guess what? No one, and I mean no one, raised their hand to allow that to happen. I don't know why I didn't agree to it because I would have at least been aboard in the preliminary stage of some social media outlet. There is still that resistance with most older attorneys to social media and social change.
You know it's kind of funny. Logically, it is abundantly clear that attorneys should be on the forefront of social media networks.
However, in practicality, few of us really are.
Okay, I promised myself by the middle of the year I will at least try to have some interconnection with the social media. You readers of this Blog can hold me to it. Maybe that will put some pressure on me to take some action.
What do you think about this? Are attorneys naturally reluctant to get involved in this social setting? If so, why do you think that is?
Come on, I want to hear from you.
January 18, 2011
Personal Injury Law
THE CAUSATION ISSUE
HOW FAR WILL YOU GO?
The word "causation" probably doesn't mean a whole lot to the general public. However, to attorneys an immediate bell goes off when they hear the word "causation". Why? Because in order to recover in a personal injury case, we must show that your injuries were caused by the carelessness of the person you are suing. But how far does that stretch?
See if you can figure out the Court's ruling in this situation. Assume that a person is seriously injured in a auto accident case. Assume the person is rear-ended by another driver. Further assume that the injured party received pain medication for his injuries. If the injured car accident victim suffers a subsequent fatal accidental overdose from the pain medication he was taking, is the driver who rear-ended him liable for his death? After all, had the deceased person not been rear-ended, he would not have started to take the pain medication and suffered the fatal overdose. How far does the proximate causation issue extend?
This is the fact situation that a Common Pleas judge had to recently decide in Pennsylvania. Was the rear-ender auto accident the proximate cause of the deceased death?
The judge in that case ruled that liability cannot be placed on a defendant who rear-ends another person in a motor vehicle accident causing serious injuries or damages, due to the victim's subsequent accidental fatal overdose on pain medication.
This points out things that keep attorneys up at 3:30 in the morning. If the injured party cannot legally show that the actions of the careless person were the proximate cause of his injuries, then he cannot recover money for those injuries no matter how severe they are.
In the above case, the estate of the deceased person would likely recover for any pain and suffering he incurred due to the rear-end accident. However, in this fact situation, the Court decided that it was too far of a stretch to hold the tortfeasor responsible for the person's death.
What do you think about this?
January 17, 2011
Criminal Defense Law
WINNING THE LEGAL BATTLE AND LOSING THE WAR
On the January 15, 2011 Pittsburgh Post Gazette front page (see article here) there was an article that Christina Korbe, who is accused of killing an FBI agent, will enter a guilty plea in her Federal case. Ms. Korbe is accused of murder in the 2008 shooting of FBI Special Agent Samuel Hicks. Anytime anyone is killed, especially a law enforcement officer, who is only doing his job, it is an absolute tragedy. Further, I know nothing about the guilt or innocence of the defendant, or what the evidence is in this particular case.
This case involved Ms. Korbe being inside her house when FBI agents came in to arrest her husband. Ms. Korbe said that she did not know they were FBI agents and that she fired a single shot at someone she believed was illegally entering her home. The shot resulted in the death of the FBI agent.
In the criminal law there are slam dunk cases and there are cases that could go either way. It seems like this would have been one of those cases. A jury could have a difficult time deciding whether Ms. Korbe was acting in self-defense or not. Legally it certainly is not a case without problems for both sides.
As the Post Gazette reported, Ms. Korbe is charged with murder of a federal officer, assault of a federal officer with a dangerous weapon, discharging a firearm in a violent crime, helping a felon to possess a weapon, 3 cocaine distribution offenses, carrying a firearm in relation to drug trafficking and possession of a firearm for an unlawful use. Therein lies the dilemma for any criminal defendant and/or their criminal attorney.
It is at least possible Ms. Korbe was acting in self-defense. It is at least possible she could have been found not guilty for that particular charge. However, it is likely that she would have been convicted of one of those other charges that she was facing.
The problem for the defense attorney, and what keeps criminal defense attorneys up at night is this...win the main charge that your client is facing but still have your client go to jail for a long time based on their conviction on some secondary charges. What do you do and how do you advise a client in this situation?
I welcome anyone's thoughts on this.
January 6, 2011
Personal Injury Law
CAR COLLISIONS
SLIDING ON ICE IN PITTSBURGH, PA AND DISCOVERY
I am sure you can relate to this. You have seen it a hundred times. This morning I was driving to work, coming down I-279 South towards Pittsburgh. A car about a hundred yards in front of me in the slow lane, was approaching a bridge. You know what happened next. The car started to slide out of control. Doesn't it seem like everything is in slow motion at that point? I remember white-knuckling the steering wheel and saying, "Oh .....!". The other car did slide out of control and went from the slow lane to the passing lane and then back to the slow lane. Amazingly, he was able to regain control without striking any other vehicles. I say it is amazing because there were cars all around him when it happened. Thank God!!
Everyone knows that driving in Pittsburgh, Butler, Greensburg and Washington County can be treacherous in the winter. Cars slide out of control and people are injured. Passengers are hurt, sometimes severely.
The question becomes can you establish responsibility on the driver in this type of situation. Often times it is an easy thing to do because the driver was speeding. However, in the example I mentioned from this morning, the driver was not speeding. The driver was not even going the speed limit. The driver was in the slow lane on I-279 South. How do you establish negligence in this situation?
That is what discovery is all about. That is the opportunity to question the driver in an auto accident case about what was happening inside the car when he skidded out of control. For example, was he using his cell phone? Was he drinking coffee? Was he looking at the passenger and not paying attention to the road?
Was he distracted in any way?
This brief example points out some of the issues involved in pursuing an auto accident injury case, based on a driver losing control and skidding on ice on the highway.
January 4, 2011 - January 5, 2011
Criminal Law
PART 1
GUNS FOLLOW DRUGS
OK, let's play a game. Let's see if you can figure out how the Courts decided this complex legal issue.
Assume police use a confidential informant to make a controlled drug buy outside a house. The drug dealer then goes inside the house. A few minutes later the task force arrests the drug dealer inside the house. When they are in the house, they observe a female in the living room with a black purse at her feet. They ask her whose purse it is and the individual says it is hers.
Without any additional questioning, the police then proceed to open the purse and search the interior of the purse. Inside they find a small bag of marijuana and $900.00 cash. The owner of the handbag is then arrested and charged with various drug offenses.
At the Motion to Suppress Evidence hearing, the police testified that they searched the purse because they feared it might contain a firearm. They claimed that guns and drugs go hand in hand. The police claimed that this was a protective search for weapons under the circumstances since guns follow drugs. The guns-follow-drugs theory says that when there are drug dealings involved, there are almost always guns associated with the drug transactions.
The question that the Court had to decide was were the police allowed to search the purse inside the house where the drug dealer was, under the guns-follow-drugs theory. Everyone recognizes that the police have a right to be safe in this type of situation.
The question is were the police justified in searching the purse?
What do you think? The answer is in the next Blog!!
January 4, 2011 - January 5, 2011
Criminal Law
Part 2
ANSWER TO THE GUNS FOLLOW DRUGS QUESTION
In the case of Commonwealth vs. Grahame, the Pennsylvania Supreme Court ruled that the police did not have a reasonable suspicion to conduct a protective search of the handbag. The woman's proximity to others engaged in criminal activity was insufficient in itself to justify the search of the purse. The Commonwealth was unable to state any facts to support an objectively reasonable belief that the owner of the purse was armed and dangerous.
Specifically, the Court ruled that the police cannot use a guns-follow-drugs presumption to uphold a protective search conducted during a drug investigation. Rather, there has to be something more than the assumption that, since the drug dealer was inside with the drugs, there likely were guns in the house and probably within that purse.
Therefore, if you answered that the drugs found in the handbag were suppressed, you are correct!!
This case highlights the balancing the Courts must employ in these situations. The safety of the police must always be paramount in any situation of this type. However, that factor must also be balanced by the 4th Amendment guarantee that all citizens enjoy.
Part of that guarantee is the right to be free from an unreasonable search and seizure of items and personal effects without a warrant.
It is really decisions like these that keep you and I free from unreasonable searches and seizures.
OK, that's my take on this case. What do you think?
December 25, 2010
Personal Injury Law
MERRY CHRISTMAS!
TO ALL MY BLOG READERS
I want to wish you and all of your loved ones a Blessed Christmas and a Happy New Year. May the joy and peace of God be with you throughout the holiday season and the entire year! Happy Holidays!
Bernie Tully
December 21, 2010 - December 22, 2010
Personal Injury Law
ROLLOVER CAR CRASH - PART 1
WHAT WAS THE DEFENSE THINKING?
Lawyers USA recently reported a jury award of $19 million in a seat belt rollover case. Eric Polston claimed that a defective seat belt design caused him to be ejected from a vehicle in a car crash. The Plaintiff became paralyzed as a result of the injuries he sustained. An Arkansas jury awarded $19 million to the 18 year old Plaintiff.
The 18 year old was driving on the highway in Arkansas when a dog ran in front of his car. He swerved to avoid hitting the dog. His 1988 Ford Windstar rolled over, ejecting him from the vehicle and causing him to be paralyzed from the waist down.
The defense claims that the Plaintiff was not wearing his seat belt at the time of the crash.
The police officer told the jury that the Mr. Polston told him immediately after the crash that he was seat belted and was thrown from the car. Another powerful witness for the injured party was a nurse who saw bruising on Polston's chest, at the hospital, consistent with injuries suffered from a shoulder harness of the seat belt.
What I found incredible about this case was that the defense made no offer to settle the case. That is right - $0. They apparently relied on their engineering experts to testify that the seat belt design was proper and that there was nothing wrong with the seat belt....
December 21, 2010 - December 22, 2010
Personal Injury Law
ROLLOVER CAR CRASH - PART 2
WHAT WAS THE DEFENSE THINKING?
You have to wonder what the defense was thinking in this rollover case? It is one thing to posture during settlement negotiations with the other side and put your best foot forward, arguing you are going to win the case. It is another thing, though, when there is testimony that a jury hears, that is the complete opposite of your theory of the case. A police officer and a nurse - those are two pretty credible professionals.
Again, I have to wonder why, at some point, before the jury went out for its deliberations, there wasn't an attempt made by the defense to try to settle this case? How could they be that confident they were going to win??
Apparently, the defense was sure that its experts would be believed by the jury and contradict the evidence stated above, that they thought they could roll the dice. Remember "I Love Lucy"? Lucy, you got some plaining to do!!
Finally, I think this points out the value of jury verdicts. Nothing gets the attention of corporations and industries, like the automotive industry, more than a huge jury verdict in a design defect or seat belt defect case. It helps to insure that the industries will do everything possible to produce the very safest product possible for the public, including properly designed seat belts.
What do you think about this verdict? Come on, I want to hear from you.
December 18, 2010
Personal Injury Law
NURSES MAY NOW TESTIFY AS EXPERT WITNESSES ON CAUSATION ISSUES IN PERSONAL INJURY CASES
In order to pursue your personal injury case, we usually need an expert to testify as to the causal connection between the negligent act and the injuries that you sustain. This is called the causation issue. Until now, only a medical doctor could testify as to the causal link between your auto accident, for example, and your personal injuries. If you are rear-ended in an auto accident and require knee surgery, we usually still need an expert to testify that your knee surgery was caused by the negligence of the driver who rear-ended you.
Recently, the issue came up before the Courts whether a medical doctor was required to make the causal connection. For example, why not a nurse? Could a nurse testify as to the causal connection between someone's negligence and his medical condition?
Well, the Courts have answered that question. Nurses may now testify as expert witnesses on causation issues in a negligence action. This is an enormous development.
The Court, in the decision, found that an otherwise competent and qualified nurse is not prohibited by the Professional Nursing Law from giving expert testimony at trial regarding medical causation.
What this means is now, for example, a nurse is allowed to testify on this causation issue at trial in, for example, a trucking accident case, or a slip & fall case or in just about any kind of personal injury case.
The reason why this is such a huge ruling is that doctors charge an awful lot of money for a medical report and their testimony. As previously noted, it is not at all unusual for a surgeon or other medical specialist to charge $3,500 for one hour of her time when testifying at a deposition.
Now in a case where the injuries are maybe not as severe, in that there is not surgery involved and it is a soft tissue injury, the plaintiff's attorney may have an option. The attorney can use a nurse to establish the medical causation and thereby incur less expenses for the client.
You understand it is the client that is ultimately responsible for payment of costs incurred. It is generally believed that nurses will charge a lot less than doctors for the same testimony regarding causation.
This does not mean that the nurses will be used as expert witnesses in all cases in the future. In fact, it is likely that they will only be used on a limited basis. However, there are some situations where nurse's testimony could help your case.
What do you think about this new tool that plaintiffs have in establishing their case? Please, I really want to hear from you!!
December 17, 2010
Personal Injury Law
MORE EVIDENCE THAT THE MEDICAL MALPRACTICE CRISIS HAS ENDED
The year 2010 has brought about a further decline of medical malpractice cases.
According to an article in the Legal, dated April 27, 2010, medical malpractice case filings and verdicts in the year 2009 revealed a continuing decline in the number of suits filed against healthcare providers in Pennsylvania, including hospitals and doctors.
This was fifth straight year of such a decline. The Legal article indicated that there were only 1,533 malpractice healthcare lawsuits filed in Pennsylvania in 2009, which was a 43.9% decline from the base year of 2002-2003. Some of the reasons for the decline could be that the plaintiffs are now required to file a Certificate of Merit before being allowed to pursue a medical malpractice case. Others feel that the reason for the limited number of new medical malpractice suits is the enormous litigation costs required to pursue a medical malpractice lawsuit. Finally, the Courts have been very strict about preventing forum shopping by the plaintiffs.
Forum shopping involves plaintiffs filing a lawsuit in the county where generally verdicts are the highest. Philadelphia is often cited as a very favorable plaintiffs' forum for personal injury cases.
Many people feel that this further decline of medical malpractice cases will lead to a lack of accountability for medical errors by those in the practice of medicine (doctors and hospitals) and the opportunity for correction of unacceptable medical care will be lost by the great decrease in the number of malpractice lawsuits filed.
What do you feel about the medical malpractice issue? Should doctors who commit medical malpractice be sued for their injuries? If the doctor commits medical malpractice in your case and sincerely tells you he is sorry for his error and explains the reasons why, would you be less inclined to pursue a malpractice case? Are you less inclined to pursue a claim against your family doctor, for example, than the surgeon who operated on you? These are all legitimate questions that should be considered when discussing medical malpractice reform.
What do you think about this? Please, I want to hear from you!!
December 16, 2010
Personal Injury Law
WHOSE NAME IS ON THE SETTLEMENT CHECK
Although this case has not received a lot of general public attention, the recent Pennsylvania Superior Court case of Zaleppa vs. Seiwell was a huge win for injured persons in the personal injury field.
Here is what the issue was. Assume your personal injury case settles for, let's say, $100,000. You have received Medicare payments as part of your medical treatment. Medicare wants reimbursed for the costs that they paid out.
The insurance company who is writing the $100,000 check wants to cover themselves. They do not want to pay the $100,000 and the Medicare lien that has to be repaid. Therefore, the insurance company, in many cases, was requiring any settlement check be made out to you the injured party, your attorney and Medicare.
This created a huge headache for you as the injured party. The reason for that is trying to get Medicare to sign the check in a timely fashion is a near impossibility. Add to that dilemma the fact that if the check was sent to Medicare it might not be returned to the plaintiff's attorney for a long long time and you see why this was creating such a problem.
The insurance company would not budge and required that Medicare's name be on the settlement check. The plaintiff's attorney could not agree to that because it would mean that the payment to the client might take a year or more, once Medicare was involved in it.
What plaintiff's counsel, including myself, often have tried to do as a way to get around this issue, was to tell the insurance company that we would be personally responsible for making sure that Medicare was paid back their lien. In other words, if for whatever reason Medicare wasn't paid, Medicare could pursue a claim against the attorney or the plaintiff, but not the insurance company. We thought that would solve the problem. Wrong! Often times the insurance company still would not send the check under those circumstances. They wanted to be completely exonerated from any potential liability to Medicare.
That's why this case was such a huge victory for injured parties. What the Superior Court said was that the insurance company could not require Medicare's name be placed on a settlement check. No more long long delays getting the check after your case settles!!
What is also helpful to you is that there is now a legal procedure to insure that once we send the signed release to the defendant or the insurance company, that they have a certain amount of days to deliver the check to us. If they do not deliver the check within the certain time period, they can be required to pay interest and attorney fees for the delay.
I used this procedure recently and I must say it worked like magic!!
I was basically getting the run around from the insurance company about where the check was. I filed a Motion to Enforce Settlement with the Court. The Court signed the Order and required the insurance company to pay attorney's fees and costs for filing the Motion. Incredibly, within two days of the Order being signed, the check was in my office!!
Now that's progress.
December 15, 2010
Personal Injury Law
LAWYER FEES - PREPARE FOR A TOUCHY SUBJECT
THE HOURLY RATE VS. THE CONTINGENCY FEE
There are generally two different ways attorneys are paid for their services in the personal injury field. Those who are hired by the insurance companies to represent clients in personal injury cases usually charge by the hour. This is called an hourly rate. It is a number that the law firm and the insurance company agree to for payment based on the hours the attorney logs in preparation for trying the personal injury case.
Incredibly, there are several firms that reported top partner hourly billing rates of $1,000 or more throughout the United States. This is not for the basic auto accident type of personal injury case, but the charge rate is staggering. This could mean, for example, that reviewing a legal document and making a few phone calls to the client could justify them charging over $1,000 for their hour of time. Imagine what it would cost to file a detailed brief and legal argument!
Most people who need legal services cannot afford that type of hourly fee.
The other type of fee is called a contingency fee. Contingency fees are used mostly in personal injury cases such as auto accidents, slip & falls or product liability cases.
In a contingency fee case, the attorney agrees to represent the injured party throughout the case. Only if the attorney is successful in getting a settlement or award will he be paid at the conclusion of the case. He usually is paid a fee based on the total settlement of the case or the total jury award.
The biggest question becomes the costs involved in a contingency fee case. Most people understand and accept that there are many costs associated with pursuing a personal injury case. Records must be obtained for review, depositions must be taken, court reporter fees must be paid, and costs do accrue in personal injury cases.
Some firms that handle a case, on a contingency fee basis, require the client to fund or pay for the costs associated with the case as the costs occur. In other words, if a doctor's deposition is required and he charges $3,500 for his time in testifying, someone has to pay that fee. At our law office, we pay that fee up-front for the client so that the client is not charged for expenses as they occur. Only if we get a recovery, is the client required to pay those costs back at the conclusion of the case.
Which method is better? The contingency fee agreement is the most practical way for an injured person to pursue a case. If the injured person had to pay the attorney on an hourly basis for his time, not many individuals would be able to afford a sustained lengthy lawsuit. The National Law Journal's annual survey of hourly billing rates found that the average billable attorney fee rate increased in 2010 by 2.7%. During the years 2004 thru 2008, the standard hourly billable rate rose between 6 and 8%.
Our law office charges only on a contingency fee basis for any personal injury case. We also fund or advance the costs up-front for the client. If for whatever reason we are not able to get a recovery for the client, the client does not owe us any money for either our time or the expenses that we incurred in pursuing the personal injury case.
Finally, there is one variation of the hourly billing rate that is used by some law firms. It is called the flat rate fee. In that situation, the insurance company pays a certain fixed amount to the law firm at the beginning of the case. That fee covers all the work that the law firm does in pursuing the case. If they put in more time than the amount the flat fee justifies, they are stuck with that flat fee amount. If they are able to resolve the case quickly with a minimal amount of work involved, then they have received a windfall using the flat fee method.
In criminal cases we do charge a flat fee for legal representation. We charge a flat fee for the Preliminary Hearing. If the case goes to trial, we charge a flat fee for representation beyond the Preliminary Hearing up to and thru sentencing, if necessary.
No attorney is allowed to represent a criminal defendant based on a contingency fee. It is forbidden by the Courts.
Which way do you think is more fair to the client? Do you have any opinion on this issue? We would love to hear from you!!
December 14, 2010
Kids Today!
SOPHIE RINGS THE BELL BIG TIME!
This Blog has absolutely nothing to do with Personal Injury Law. This Blog also has absolutely nothing to do with Criminal Law. As you know, those are the two main subjects I cover in this Blog.
This Blog has to do with something much bigger than those important subjects. It has to do with heart, character, drive and determination. It has to do with our youth today in America.
My daughter Katie is a high school junior. She studies more than anyone I know.
One of her best friends from the field hockey team is a high school senior. Her name is Sophie. Sophie has some type of reading difficulty where apparently when she reads words they get a bit jumbled in the translation in her mind. As a result of that, she has had to take remedial reading classes throughout High School. That's important to know about this story.
Sophie is also one of the nicest, most caring, most positive people you could ever hope to know. She was the captain of her high school field hockey team this year. The field hockey team had a very successful run going toward state finals. They did win WPIAL's.
Sophie had a dream. She wanted to go to Carnegie Mellon University. At this point you might be thinking are you crazy? Get into a school like Carnegie Mellon University with a reading problem? Are you out of your mind? Everyone knows the reputation that Carnegie Mellon University has. It could never happen.
But that's not the way Sophie looked at it. She looked at it as a problem and she wanted to reach her goal. The goal was clear. She wanted to get into Carnegie Mellon.
Well, fast forward many years of getting help and working extra hard and studying, studying, studying for the SAT test. Fast forward to December 13, 2010.
Last night Sophie and her friend Alexa knocked on our door. Sophie wanted to tell us something. Yes, you guessed it. Sophie was accepted into Carnegie Mellon University as an undergraduate student for the fall 2011 term!! Congratulations, Sophie. It couldn't have happened to a nicer person!!
I hope this Blog serves as an inspiration to anybody who has ever been told that you are too big, too small, too slow, too fast, too dumb, too smart, too pretty, too ugly, too shy, too forward, you don't have enough money, you can't compete with those smart people and who are you to dream those kinds of dreams? We have all been told these things over the years haven't we?
Sophie is living proof that if you have a dream and you are willing to put in the effort to make it a reality, dreams can come true!! Carnegie Mellon? God I love it!
Last point. We hear so much of the negative things about our youth in America today. Random acts of robbery, drug use, teenage pregnancies, disrespect for authority, and disrespect for society in general, seems to be all you see in the newspapers concerning youth. But that isn't the whole picture.
There are decent, caring, hard working American youth out there who want to do the best they can and do something special with their lives. Sophie is a perfect example of this type of person.
Once again, Sophie, congratulations to you and your family. You did our whole community proud!!
December 13, 2010 - December 14, 2010
Personal Injury Law
WORKERS COMPENSATION AND BENEFITS
A QUIZ - PART 1
Okay, let's play a game. I am going to give you a fact pattern and you tell me how you think the Court ruled. Let's begin.
The claimant is a Pennsylvania State Police officer. He brought a workers compensation benefits petition based on a diagnosis of post traumatic stress disorder and depression (PTSD).
The claim arose out of a motor vehicle accident in which the State Trooper struck and killed a pedestrian with his patrol car. The pedestrian may have been attempting to commit suicide and ran in front of the police car. The trooper testified that he never envisioned such an event occurring to him, yet he responded to the emergency situation, just as he would have any other accident scene. He had to give mouth to mouth resuscitation to the deceased woman who was bleeding from the mouth.
The question is whether that series of events constitutes an abnormal working condition for a person in that line of work (state trooper)? When there is no physical injury to the claimant, he must show an abnormal work condition in order to get workers compensation benefit.
The claimant filed a petition seeking total disability based on post traumatic stress disorder (PTSD). The claimant also referenced anxiety after the event, particularly when driving.
OK, what is the answer? We will give you the answer tomorrow...
December 13, 2010 - December 14, 2010
Personal Injury Law
WORKERS COMPENSATION AND BENEFITS
A QUIZ - PART 2
Answer: The Pennsylvania Commonwealth Court held that the claimant was not entitled to receive workers compensation benefits for post traumatic stress disorder and depression on the basis of an extraordinary event or abnormal working condition. The Court sympathized with the trooper's situation, but said even the trooper's mouth to mouth resuscitation of the woman bleeding from the mouth, while an unusual event for an average person, was not extraordinary for a police officer.
The Court pointed out that police work is, by its very nature, highly stressful and a claimant must establish that the incident that caused his mental injury is much more stressful and abnormal than the already highly stressful nature of that position (police work).
The State Trooper had conceded, as part of being a state trooper, that he had been exposed to violent crimes, accidents, and trauma in the past. Further, the trooper agreed that exposure to those types of things comes with the job.
What the Court basically said was that these facts, while highly emotional and stressful, were not so extraordinary as to allow benefits to be paid for the post traumatic stress disorder and depression.
I think this decision really points out the tough job that Judges really have on cases like this. Emotionally and in terms of sympathy, clearly the weight goes to the Trooper and what he experienced. However, the counter view is that the Courts must follow the law and decide the case based on the facts and the law without emotion or sympathy. This is really a tough thing to do.
What do you think about this decision? I want to hear from you.
December 12, 2010
Personal Injury Law
AUTO ACCIDENTS
MINOR IMPACT SOFT TISSUE (MIST) INJURIES & LOW JURY VERDICTS
What do you do when a client comes into your office and has suffered a minor impact soft tissue (MIST) rear-end auto accident injury? Assume he has the full tort option on his insurance. The person is hurt and often has had extensive treatment for his soft tissue neck or back injuries. He has also received a very low offer from the insurance company for the tortfeasor. What can you do?
These are some of the most frustrating types of cases because your client has really been hurt thru no fault of their own, and yet the prospects of a large jury verdict for everything they went through and are going through now, are dim.
There are exceptions, of course, but in a large number of jury verdicts on minor impact soft tissue (MIST) auto accidents the juries are giving extremely low awards. Insurance companies know this and are feeding on it by making extremely low offers in these kinds of cases. MIST cases are the types of cases insurance companies want to try.
The defense usually comes in at trial and admits they are at fault. Then they show photographs of the cars involved in the rear- end accident. Often times there is no visible damage to either car in the photograph. They then point those photographs out to the jury and ask how seriously hurt can the person be if there is not even any damage to the cars? That argument is very powerful to juries.
Well what can we do to counter those arguments? What does impress jurors in MIST cases? Attorneys Scott Cooper and Laurie Aulenbauch developed a survey by asking respondents questions about their feelings toward rear-end low impact collisions (RELIC) cases. RELIC and MIST deal with the same type of situations. People were asked to identify what factors a jury would likely consider in giving money in these kind of MIST cases. The attorneys used a company called Results Network, a Harrisburg based marketing research firm, to help with its study. The results were very interesting.
First, the major conclusion was that the average juror is more likely to find an injury as a result of a rear-end low impact collision (RELIC or MIST) if it is an aggravation of a pre-existing condition. In other words, if an injured woman had a prior problem to her back or neck and the jury felt that this auto accident aggravated that condition, it would likely give an award in that type of case.
Second, jurors want to see some objective injury or medical finding like an abnormal finding on an x-ray or MRI to grant a person money.
The major finding was that a good (RELIC or MIST) case to take to trial is one involving an accident victim with a preexisting back or neck injury who was doing pretty well before the accident and the impact aggravated the person's condition.
Finally, it seems to matter whether your client who was rear-ended, was braced for impact or not, Juries seem to give more money to victims who were not braced for impact when the collision occurred than those who knew they were going to be hit. Lastly, positive key words that were repeatedly mentioned in the study were the following: SUDDEN, ABRUPT, UNEXPECTED, IMPACT, POSITION OF BODY WHEN HIT, and VISIBLE INJURIES (x-rays, bruises, or lacerations).
Okay, there you have it. Now let's go out there and get a million dollar verdict in our next low impact rear-end auto accident case. If only it were that easy!
December 11, 2010
Personal Injury Law
COST OF HEALTH CARE, LAWSUITS & TORT REFORM
Some people, including the insurance industry and many doctors, feel that the reason healthcare costs are rising is because of medical malpractice lawsuits and runaway jury verdicts. This is part of the rhetoric on tort reform that is bandied about usually during election time. But consider some of the following findings.
First, the Congressional Budget Office recently found no evidence that defensive medicine is practiced in for-profit, managed care programs where gatekeepers limit unnecessary tests. In other words, the argument that doctors have to run unnecessary tests for defensive purposes to prevent themselves from being sued has no merit.
Dennis Feeley, a lawyer with the law firm of Cohen & Feeley of Bethlehem, PA, writes that medical errors, waste and other abuses are rampant under Medicare.
A new study by the Department of Health and Human Services reports one in seven hospitalized Medicare patients are harmed by treatment mistakes that lead to 180,000 deaths annually. Feeley points out that if every possible tort reform were enacted that you hear about on TV or radio, the savings realized would amount to only 2% of the total healthcare expenditures. The real culprit appears to be serious and fatal medical errors that lead to deaths.
In other words, medical malpractice.
In Western Pennsylvania several years ago, there was a huge public relations campaign indicating that doctors were fleeing the State of Pennsylvania because of the high cost of medical malpractice insurance. However, the proof of that fact was extremely vague. The Pennsylvania Courts also stepped in to deal with this potential issue. The Courts now require a plaintiff to file a Certificate of Merit before any medical malpractice lawsuit can proceed in Pennsylvania. In other words, an attorney cannot just file a lawsuit against a doctor or hospital anymore without having a report from an expert stating that, in their opinion, the doctor or hospital in question committed medical malpractice.
In our opinion, medical malpractice lawsuits help patients and consumers because it helps to insure against sloppy, catastrophic medical errors by doctors and hospitals. What do you think about this issue? Please, we welcome your comments. I really want to hear from you...
December 10, 2010
Personal Injury Law
DANGEROUS TOYS AND LAWSUITS
The American Association For Justice published a news article recently entitled, "Playing With Safety..Dangerous Toys and The Role of the American Civil Justice System". The article states that since 1974 the Consumer Product Safety Commission (CPSC) has issued more than 800 recalls for toy products, many for hazards like magnets, lead and other dangers hidden in children's toys. Between 2004 and 2008, toy related injuries increased 12% and over the last ten years, toy related injuries increased 54%. That is a startling statistic.
Equally alarming, is the fact that the CPSC is vastly understaffed to cope with the new toy products that come out every year. For instance until 2007, CPSC had only 15 inspectors to monitor all ports in the United States for all products and only one employee to conduct tests for toys.
Lastly, a public citizen's analysis of consumer recalls found that companies who make toys waited an average of almost three years to inform CPSC of defects, and then the agency waited another 209 days before informing the public. In plain English, that's over a three year wait time from when the company's toy went on the market until the public was informed that there was a danger to a child.
OK, what does that all have to do with your right to a jury trial and lawsuits? Simply put, the fastest way to make sure that companies that make, manufacture, and market toys, do so safely, is the threat of a lawsuit against them if they make an unsafe dangerous toy.
Given the above couple of paragraphs, can anyone truly say that companies are going to put the greater good above making a profit from these toys? Some of the toys have obvious dangers where a parent could see it by just visually looking at the toy. However, others have hidden dangers that parents would not be able to detect. Specifically, things like lead and other hidden byproducts of the toys can cause irreparable harm to our children and we do not even know about it.
The only real way to stop this, that I can see, is the threat of lawsuits. I agree that some lawyers in general have a negative reputation in society for filing frivolous lawsuits and lawsuits that are designed to make a fast buck off of someone's misfortunate. However, lawyers and lawsuits can do real good to change corporate policies and make products and toys safe for families and children.
Nothing gets the attention of big toy manufacturing companies more than getting hit with a huge jury verdict for producing an unsafe toy for the public's consumption.
What do you think about this? Do you think that lawyers are only out to make a dollar? Or can you see lawsuits having a positive benefit to consumers by keeping companies in check from putting toys and products in the marketplace that can hurt children? Please share your opinion on this issue...
December 9, 2010
Personal Injury Law
LOW JURY VERDICTS AND PENDULUMS
POLITICAL AND LEGAL PENDULUMS
PART 2
Probably the biggest case that turned juries off to victims of lawsuits was the McDonald's case. As just about everybody remembers, a jury gave a large sum of money to a victim who scalded herself with coffee, that was too hot, from McDonald's when she apparently placed it between her legs while she was driving.
Additionally, the insurance industry was able to convince the general public that, by giving large jury verdicts, their insurance premiums were going up. Ultimately, juries started to believe that, by giving money to auto accident victims and victims of other personal injury cases, that they were ultimately paying for it out of their own pockets.
Once that belief took hold, jury verdicts plummeted. In fact, jury verdicts are down somewhere around 35% from what they were just twenty years ago. The number of defense jury verdicts is staggering. Additionally, even when the jury does give an award to plaintiffs in personal injury lawsuits, the jury awards are very small.
This is, of course, an example of the legal pendulum going too far to the right and over correcting for the excesses of the past, when it was too far to the left.
Now, in recent months it seems as though the jury verdicts are starting to move a little more towards the legal center of fair awards.
By this, I mean, we are seeing more and more larger verdicts for plaintiffs in lawsuits where they are legitimately hurt and suffer permanent injuries or require extensive surgery.
This is very similar to the political realm where the political pendulum went from the far right to the left. In the same way, the legal pendulum has swung from the far left all the way back to the far right, and is now moving, hopefully, towards the center where it should be.
Do you think that jury awards are too high? Do you think jury awards are not high enough? Please respond and we will have a intelligent discussion on the issue. I look forward to hearing from you...
December 8, 2010
Personal Injury Law
LOW JURY VERDICTS AND PENDULUMS
POLITICAL AND LEGAL PENDULUMS
PART 1
On Tuesday, December 7, 2010, President Barack Obama cut a tax deal with Congressional Republicans to keep the Bush tax cuts intact for all Americans.
There has been an intense debate and it was President Obama's position that the tax cuts should only be extended for people making under $250,000 per year. However, given the most recent elections in which, by his own acknowledgment, his party took a shellacking by the Republicans, President Obama faced the hard political reality that the only way the tax cut would stay in effect for middle class Americans, was if he agreed to allow it to also stay in effect for those making above $250,000 per year. Therefore, for at least the next two years, the Bush tax cuts will apparently remain in place.
This got me thinking about how the political pendulum swings in America. In 2000, President George W. Bush was elected President. He served for eight years. A lot of people thought that his policies went too far to the right with the invasion of Iraq and the long term wars that we are still engaged in defending our freedoms. Many would argue that the political swing was too far to the right under Bush.
Then President Obama is elected in 2008. President Obama proceeds to help pass ObamaCare, a comprehensive health care for most Americans. President Obama presided over a lot of government sponsored programs that greatly increased the national debt. Objectively, one could say that President Obama pushed the pendulum too far to the left.
Now, after the most recent congressional elections in 2010, the people have spoken. Obama went too far left for many Americans. I think you are going to see, come January, that President Obama's State of the Union address will move to the political center. I think you will see that he will become a great and forceful spokesmen for a balanced budget and budget deficit reduction.
Right in the political center.
In short, the political pendulum went from the far right to the far left and is now moving back to the center where it probably belongs.
In the same way, long long ago, when I was a young attorney, and just starting out as a lawyer, about 30 years ago, the legal pendulum was pretty victim oriented. By that I mean, juries could by and large be counted on to give decent to large awards for personal injuries. Sometimes the awards were probably overly generous, given the nature of the victim's claims. There was a feeling back then that juries watched out for a victim in an auto accident, a wrongful death claim, or a case where someone had to have surgery due to the carelessness or negligence of another. There, but for the grace of God go I, seemed to be the prevailing philosophy in terms of huge jury verdicts. Jury verdicts were victim oriented.
Then came massive assaults on the jury system, including tort reform proposals. The general public was aghast at some of the jury verdicts and the amounts of money that were given to people suing...to be continued tomorrow.
December 7, 2010
Personal Injury Law
SALE OF BEER BY GROCERS UPHELD
The Pittsburgh Tribune Review recently ran a front page article entitled "Sale of Beer By Grocers Upheld". The article related that the Pennsylvania Supreme Court recently ruled supermarkets in Pennsylvania can continue to sell beer. The Pennsylvania State Supreme Court ruling was unanimous, meaning that all seven Justices sided with the Liquor Control Board decision to allow a grocery store to sell beer in its stores.
The Pittsburgh Tribune Review article noted the ruling means other stores such as Giant Eagle can continue to sell beer to drink on-site or to go in 6 packs. The opinion acknowledged the ruling could open the door for large retailers to secure liquor licenses.
The Giant Eagle food market chain currently sells beer in 16 stores in the area. Customers of Giant Eagle can buy up to 2 beers to drink in a café style area with food, or 2 six packs to carry out.
OK, by now you are thinking what the heck does this have to do with personal injury law? Part of the answer is that the sale of beer by grocers can greatly increase the availability of beer for those who drive. For example, a customer could buy 2 beers and drink them in the Giant Eagle store. He could then buy 2 six packs to carry out with him, presumably to drink at home. However, the danger is that the individual who had two beers at the store could continue to drink the carry-out beers he bought while driving home.
This could, of course, greatly increase the number of persons drinking and driving on the roadways. Everyone acknowledges that drinking alcohol and driving will substantially increase the chances of an auto accident or even a fatality on the roadway.
Drunk driving and auto accidents go hand in hand.
Now that grocery stores are allowed to sell beer, it is just a matter of time until huge retail stores like Wal Mart are going to follow suit and sell beer in their stores. In other words, the potential danger is that alcohol is going to be available anywhere 24/7.
Since we live in a mobile society where cars are a virtual necessity of life, it can be argued that allowing grocery stores to sell beer will increase the likelihood of drunk driving accidents and fatalities on the highways. It is not the Court's fault. It is the laws that are on the books in Pennsylvania.
Another way this decision can affect personal injury law is that grocery stores could be sued for dram shop type lawsuits. In a dram shop lawsuit, the complaining party (the plaintiff) alleges that the bar served a visibly intoxicated person when they shouldn't have and that this carelessness or negligence caused someone to be injured. The classic example, of course, is the bar serving a patron when he is obviously too drunk to drive. That patron then gets in his car, goes on the highway and kills someone. The bar is often the subject of a personal injury lawsuit for wrongful death. The same type of argument could be made against grocery stores who allow a visibly intoxicated person to consume alcohol on their premises or even to buy alcohol to go. Will the decision expose grocery stores to wrongful death claims?
Will the Pennsylvania State Legislature step in and change this law which now allows grocery stores to sell beer to customers?
They clearly have the ability to do so. The question is whether they will.
Stay tuned for further developments.....
December 6, 2010
Criminal Law
JAIL POPULATION DECLINE
In the December 5, 2010 Pittsburgh Post Gazette newspaper, there was an article entitled "Jail Population Dropping in County and Nation". The gist of the article was that local jail populations are declining in both Allegheny County and throughout the Country, according to a study released by the Pew Charitable Trust.
The question is why jail populations are dropping and the answer is obvious. The article indicates the high cost of keeping people in jail is the biggest reason for the drop.
How did we get in this situation? One of the biggest reasons is that laws were passed over the last twenty years dealing with certain mandatory sentences. Politicians want to get re-elected. Nothing is more popular or easier to say than a State Representative or lawmaker stating, "I am tough on crime and I voted for increased jail terms for certain offenses". Who could argue with that? It just sounds so right. After all there is no lobby for defendants who have been convicted of certain offenses to counter this type of approach.
So what was the result of all this? Laws were then passed that severely limited and restricted what judges could or could not do to any person who was convicted of a certain offense. If the law says that a person convicted of drunk driving must do jail time, then the judge is required to sentence that individual to jail time for the offense.
The same thing happened on the federal level where U.S. District Court judges had severe limitations placed upon them on what they could sentence an individual to, who was convicted of a certain type of offense. Mandatory sentences basically took away most of the discretion of the Court to fathom a sentence that was fair under the circumstances. Just about everyone is aware of cases where a judge was required to send someone to prison for a long term as a result of a conviction on a charge like retail theft because of the individual's prior record.
Even though the theft involved an item worth about $50, sometimes the Court had to sentence such an individual to a mandatory lengthy prison term. Again, it was because of the mandatory sentencing laws that were passed for offenses including drunk driving, robbery and certain drug offenses.
What has happened, though, since then, has been a recognition by officials that the cost of housing these individuals is just overwhelming and is leading to increases in taxes for the citizens. We simply cannot keep building more and more jails to house individuals who are convicted of certain offenses like drunk driving. Therefore, an approach was developed in Allegheny County and basically throughout the nation, to look to alternative housing for individuals who are convicted of certain types of offenses, again, like drunk driving or certain drug offenses.
House arrest is probably the biggest alternative to jail sentencing available to officials for certain mandatory crimes. In house arrest, the individual who is convicted of the crime still is sentenced to the mandatory law but instead of serving his sentence in jail, he spends it confined to his house for the period of incarceration that the sentence runs.
Additionally, in almost all cases the individual is given the opportunity to continue to work even though he is on house arrest for his crimes. This allows the person to continue to pay his fines and costs and taxes and continue to be a productive member of society.
This study points out the dilemma facing officials in dealing with crimes. Allowing alternative programs like house arrest for persons convicted of crimes, including drunk driving and possession of certain drugs, seems to be the sensible approach to go in order to balance the competing interests involved in this issue.
What do you think? We welcome comments from anyone regarding this blog.
December 3, 2010
Personal Injury Law
WHETHER TO ACCEPT OR NOT ACCEPT THE OFFER MADE BY THE INSURANCE COMPANY
This Blog concerns whether or not a personal injury victim should or should not accept the offer that is made by the insurance company. Let's assume that a victim is driving his car and is sideswiped by a tractor trailer truck on the Pennsylvania Turnpike. Assume further that the innocent personal injury victim suffers severe back and neck injuries. He has to have a reconstructive hip surgery for the damages caused by the tractor trailer driver's negligence.
It's likely, at some point, that just prior to trial there will be an offer made by the insurance company from the trucking company to try to settle the case.
Let's assume further that the offer is $250,000. The question is whether the personal injury victim should accept the offer? At some point, almost always the client will ask the question, "What do you think? Should I accept the offer or not?"
What factors go into what the attorney advises the accident victim under these circumstances? I think the first thing that the client should be told is that there are certain conditions concerning any lawsuit that they will be subject to. Specifically, any offer that is made by the insurance company will not be known by the jury. In Pennsylvania it is strictly prohibited for a jury to be told what the offer is from the insurance company.
In plain English, this means the jury is not told that the insurance company offered you $250,000. That is the danger in rolling the dice and going to trial. The jury could give you considerably less than the $250,000 offer.
In that nightmare situation, you are in the worst of all worlds because not only do you have to accept the lower award the jury gave you, but in addition, you have run up extra expenses that you wouldn't have incurred if you had taken the $250,000 offer. It is not at all uncommon for a surgeon to charge $3,000 for testifying in your case. That is an example of a charge you would not have incurred had you taken the offer.
Again, you could decide to go to trial and the jury would give you $500,000 for your injuries. In that case, it was obviously worth it to go to trial.
The point of all this is that there are huge risks involved in deciding whether or not to accept the insurance company's offer. Your attorney can give you his best opinion concerning what you should do, but ultimately it is always your call whether to accept the offer or go to trial.
December 2, 2010
Personal Injury Law
FIGURING OUT THE VALUE OF A FACIAL SCAR AND PERMANENT SCAR ABOUT THE BODY
A recent poll asked people to pick the best looking man and best looking woman from among 20 celebrities. The 20 celebrities are probably names you could easily recognize, but for purposes of this Blog, just consider that these are movie actresses and extremely handsome guys.
Guess who won? For ladies, the best looking woman was Jennifer Aniston. For the men, the best looking man was George Clooney. God forbid if either of them were in a horrendous auto accident. What would a jury consider in assessing damages for scarring to their faces and bodies?
It could easily be argued that their faces are their livelihood and therefore, the severe facial scarring to these "beautiful people" is worth a lot more than the same facial scarring to an average person. This really brings out the subjective nature of how a jury evaluates facial scarring in a personal injury lawsuit. Assume, for example, that a person is bitten by a pit bull dog about the face thru no fault of his own. Assume that the other side (the defendant) admits that it was their fault that they let the pit bull attack and permanently scar and disfigure a personal injury victim.
The only real question becomes what is the value of the facial scar? How does the jury come up with a figure to award to someone who has a permanent facial scar? What factors do they consider? Is the value of a severe facial scar worth more for a woman than a man who is the victim of the dog mauling?
Is the value of a severe facial scar to someone who is not married worth more than someone who is married and has grown children? Is the value of a long scar about the neck worth more or less than the value of a similarly sized scar about the ear area or the arm area? Unfortunately, there are no real objective guidelines that people can use to predict how a jury is going to assess the value of a permanent scar.
This illustrates the problem attorneys have in advising victims of a scarring accident on whether to accept the offer made by the insurance company.
It is hard to advise someone whether to accept the offer when we aren't even clear ourselves what a jury would likely give to an injury victim under these circumstances.
Oops! There I go again letting my guard down!
I will tell you what is really scary. Often times both attorneys for the plaintiff and the defendant and the judge agree that the value of the scar is worth in the area of, let's say, $15,000. However the jury, acting on its own, can look at the same scar that the Court and both attorneys agree is probably worth in the area of $15,000, and give $50,000 or $1,000.
In my opinion, the only thing that a personal injury lawyer can do is be honest with the client and tell the personal injury victim what the attorney really believes the value of the scar is, based upon his experience, the personal injury victim's circumstances and possibly what amounts other scars of a similar nature have been awarded in that county in the past.
The bottom line is that since the value of scarring is so subjective, advising clients whether to accept or reject an offer to settle their facial scarring claim is very problematic.
