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NTSB Recognizes Need to Better Monitor Truck Driver Fatigue

Michael Phelan — Fri, 04 Dec 2009 01:00:00 GMT

Last month, Deborah Hersman , Chairwoman of the National Transportation Safety Board, spoke in Washington to the National Press Club and stated that every day over 100 Americans die in transportation accidents, mostly on our highways. After her speech, the Chairwoman turned her comments to truck accident prevention.

Chairwoma Hersman recognized driver fatigue as a major cause of truck crashes and called for Electronic Onboard Recorders (EOBRs) on all commercial trucks. Her rationale for this safety device is that NTSB "investigate accidents on a regular basis where we find two sets of log books [with one being false]." In other words, even the NTSB recognizes that fudging driver log books is a common practice to enable drivers to be on duty for more hours than is legally permitted. While not fool proof, EOBRs are harder to fudge than paper driver logs. Monitoring driver fatigue is an important safety issue.

As I discussed in a recent blog, none of these monitoring devices are of any use in civil litigation unless the evidence is preserved. The Federal Motor Carrier Safety Regulations permit trucking companies to destroy this evidence six months after the crash. That's why truck accident vicitims should consult an experienced truck accident lawyer as soon as possible. The first thing the lawyer should do is send a letter to the truck company and its insurance carrier demanding that all evidence from the truck and the scene be preserved.

Originally posted at InjuryBoard by Michael Phelan

Wal-Mart Settles Massive Wage & Hour Lawsuit

Zev Antell — Thu, 03 Dec 2009 15:59:17 GMT

According to an article in today’s Boston Globe, Wal-Mart has agreed to settle a wage and hour lawsuit which will net $40,000,000 to be divided amongst a class of tens of thousands of employees and former employees. The lawsuit alleged a cornucopia of violations including failure to pay overtime, denial of rest and meal breaks, and manipulation of employee time cards.

Companies that fail to pay overtime or who require workers to work “off the clock” run the risk of serious liability under state and federal law. Large companies like Wal-Mart with many different locations are wise to take stock of their wage practices because if violations exist, they are likely to be replicated throughout the company and not be isolated to a single location or even region.

Originally posted at InjuryBoard by Zev Antell

Experts Not Permitted to Testify Plaintiff is Faking or Exaggerating Symptoms

Michael Phelan — Wed, 02 Dec 2009 11:21:33 GMT

A written opinion issued earlier this month from the United States District Court for the Eastern District of Virginia, Richmond Division slams shut the door on the defense practice of hiring a medical expert to accuse the plaintiff of malingering, symptom magnification, being motivated by secondary gain, having somatoform disorder or any of the other names used by defense doctors to imply that injured plaintiffs are faking or lying. In Kidd v. Wal-Mart Stores, Inc., et al., Civil Action No. 3:09CV264, Magistrate Judge M. Hannah Lauck ruled that even if a medical expert possesses sufficient psychological expertise to offer expert testimony as to whether the plaintiff evinces symtom magnification or somatiform disorder, the Court would not permit the experts to opine whether the plaintiff has such disorder because "[s]uch testimony far too easily invades the province of the jury or comments on the credibility of the Plaintiff."

One often sees in defense neuropsychological reports opinions along the lines that the plaintiff's complaints have a functional component, are motivated by secondary gain, represent symptom magnification or malingering, etc. I make it a practice to move to exclude such opinions as being the type of testimony the goes to the truthfulness or credibility of a witness and invades the province of the jury. See Pritchett v. Commonwealth, 263 Va. 182, 186-187, 557 S.E.2nd 205, 208 (2002). Virginia state trial courts have been receptive to this argument, and it is good to see the federal district court following suit.

Originally posted at InjuryBoard by Michael Phelan

Ethical Law Firm Marketing?

Michael Phelan — Mon, 30 Nov 2009 10:51:49 GMT

The endless quest to improve search engine optimization may have landed one Wisconsin personal injury firm in hot water. Wisconsin’s largest personal injury law firm, Habush, Habush & Rottier, is suing another firm, Cannon & Dunphy alleging that Cannon has been hijacking Habush's name in Google searches. The suit claims that Cannon is paying Google and other search engines to direct people who search for Habush to the Cannon website. The suit says consumers could be confused when their search for the Habush law firm turns up a competitor. "Defendants' obtaining and using the keywords 'Habush' and 'Rottier' is an intentional and illegal effort to trade on the hard-earned names, personal reputations and good will" of the plaintiffs, the suit claims.

If these allegations are true, I hope the Habush firm prevails. Aside from the privacy right and consumer law implications, the alleged hijacking seems, in my opinion, to be plain wrong and unethical. I cannot imaging making the decision to try or allowing a SEO marketing company I hired to try to divert consumers searching for a competitor firm to my website. Aside from the obvious appearance of an impropriety, and the concern about false and misleading information, the activity is just wrong. I'm sure most lawyers know this and would never undertake such Rambo marketing tactics.

In fairness to Cannon & Dunphy, its name partner Patrick Dunphy said he thought a marketer made arrangements with search engines, and that his firm never requested that Habush and Rottier keywords bring up his firm in search results. On the other hand, Dunphy does not concede that there is anything wrong with the alleged diversionary tactic. If Dunphy's professed ingorance is true, I believe C &D should have instructed their marketer to stop the practice as soon as they learned about it.

Originally posted at InjuryBoard by Michael Phelan

NFL Concussion Policy: a Very Slow Work in Progress

Michael Phelan — Tue, 24 Nov 2009 14:36:43 GMT

With every new round of concussions in the NFL, it seems to me that the press and the NFL react as if dangerous concussions were a new issue in football. The multitude of stories about the brain damage, alzheimers-like symptoms, memory loss, depression, and suicidal behavior of former players like Andre Waters, Mike Webster, Tim Johnson and others get swept under the carpet as the NFL takes its predictable stance of delay and double talk on the issue of brain injuries. And, with the exception of the New York Times series on brain injuries in the NFL, the sports media typically looks the other way. Until now. Sports Illustrated's Ann Killion has written a piece in her Inside the NFL column accusing Commissioner Roger Goodell of business as usual just as he announced a new policy requiring teams to consult with independent neurologists following a concussion to one of the teams' players.

Ms. Killion cites the cases of the two quarterbacks who played in last year's Super Bowl. The Steelers' Ben Roethlisberger left Sunday's game against the Chiefs after taking a blow to the head and suffering concussion-like syndromes. But by Monday reports out of Pittsburgh described the Super Bowl winning quarterback as "fine" and capable of playing this week. Arizona's Kurt Warner also left his game against St. Louis after his head slammed into the turf. But the Cardinals are "optimistic" Warner will play this week. This, despite the fact that Big Ben suffered a serious head injury in a motorcycle crash and Warner suffered multiple concussions in the past. Ms. Killion concludes that "[t]he culture of denial and quick turnarounds runs too deep in the NFL to be changed by a commissioner's mandate."

This SI column follows a recent article in The New Yorker, in which Ira Casson, who co-chairs an NFL committee on brain injury, said he isn't sure what the solution is. "No one has any suggestions -- assuming that you aren't saying no more football, because let's be honest, that's not going to happen," he said.

Commissioner Goodell's new policy addresses an issue that has long been part of the problem in the NFL: the onflict of interest posed by leaving the decision about when a concussed player should return to full contact to a doctor employed by the team and the league.

Ms. Killion points out that the culture of denial trickles down to college, high school and youth football. Every day, coaches and administrators struggle with medical issues far beyond their capability. At Cal, Jahvid Best has been sidelined for two weeks after suffering a horrific end zone collision and concussion. In Florida, Tim Tebow -- who, in September, was knocked out cold and carted off the field vomiting -- hasn't missed a game (the Gators had a bye the week after Tebow suffered his concussion). But some observers think he hasn't been the same since.

On high school fields around the country, kids are carted off with concussions every week. In New Jersey last year, a junior linebacker was cleared to play after suffering a concussion. He suffered another hit, which ended up killing him. His parents are suing the high school and their doctor.

The violent hits are celebrated. The early returns to the field are deemed courageous. The head traumas of star players are underplayed.

The NFL sets the tone for it all. Commissioner Goodell took a step forward this week. But there's a long way to go.

Originally posted at InjuryBoard by Michael Phelan

Coping with Brain Injury During the Holidays

Michael Phelan — Mon, 23 Nov 2009 21:06:03 GMT

For victims of acquired brain injury, the time of year that once brought great joy may now be the most difficult time of year. Brain injury victims often struggle to cope with, among other sequelae, memory problems, obsessive compulsive behaviors, an aversion to loud noises, big crowds, and bright lights, decreased communication skills, and special diets. Imagine the terror of tying to cope with these issues while being expected to attend holiday parties and large family functions.

I read a wonderful piece in the Augusta Free Press advising brain injury victims how to cope with the holidays. Some suggested ways for making the holidays fun and less stressful for all, particularly when persistent cognitive /behavioral issues are problematic include:

1. Holiday shopping should be a fun activity and indoor malls are weather controlled and safe places for strolling on foot and/or for those wheelchair or walker assisted. However, the holiday period can make shopping less than a fun activity without preplanning. Start early to avoid the holiday crowds and use the opportunity to incorporate cognitive exercises into the planning. The individual with brain injury should make a list of gifts to be purchased or hand made, when possible, suggested gift ideas and estimates of costs associated with the gifts.

2. Catalogs that come in the mail this time of year are wonderful for gift ideas and also for estimation of prices. Take some time to sit down and look through a few as part of the independent planning phase.

3. Make out a simple budget before going to the bank and allow your family member with brain injury as much control of the funds as possible even though money management skills may be impaired.

4. Place greater emphasis on use of journals or calendars to record routine events as well as holiday activities. Schedule a week in advance, with a daily review to make note of any changes as they come up. Those accustomed to a daily routine may be better prepared when special dates and activities are written in the journal and/or on the calendar in colored ink for emphasis.

5. Each day, during the holidays, orient the individual by discussing the day’s activities over breakfast to avoid misunderstandings about changes from the normal routine. It is helpful to repeat this information several times during the day for those with severe memory problems.

6. If bright or flashing lights bother your family member and/or possibly trigger seizures, carefully plan any additional lighting that will be used during the holidays and avoid laser holiday lighting displays.

7. Crowded places and loud music may also bother some individuals and should be taken into consideration and monitored, if necessary.

8. Food is a big part of holiday fun and many of the foods may be very temptingly displayed. Parties, holiday family dinners, and open house gatherings are often scheduled at times that do not coincide with routine mealtimes, thus, presenting a problem for those whose mealtimes are more rigidly scheduled. You may want to offer a light snack at the regular mealtime to “tide him/ her over” until the main meal, or make whatever adjustments are necessary. For those with more severe cognitive deficits, which interfere with appropriate food intake, it may be necessary to help with monitoring to avoid overeating. It is very common for damage in the hypothalamus area of the brain to interrupt signals to the brain which help the individual know when their appetite has been satisfied, thus, many with brain injury need help with quantity control monitoring. Additionally, memory problems and attention can derail a persons resolve to watch their food intake to avoid excessive food and beverage intake. After a brain injury burning of calories may also be changed and individuals who could eat anything and everything before the injury may need to more diligently watch calories to avoid weight gain.

9. By all means don’t forget that increased activity during the holidays may be more fatiguing than usual so plan rest periods accordingly. This is particularly important when cognition and behavior are problems. Fatigue often increases confusion that can result in an outburst or other kinds of unpleasant behaviors.

10. Structure can be your best strategy for ensuring the entire family has a higher quality of life. Initially it takes effort to get the structure in place but it pays dividends in the end. Flexibility is a key word during the holiday season but planning and preparation will hopefully result in a happy holiday for family and friends.

Next comes New Year’s resolutions! Start thinking about ways your entire family can enjoy life more fully, fulfill the demands of your caregiving role and provide the best possible quality of life for your family member with brain injury.

Most of us take these simple pleasures for granted. As the father of a young adult with who suffers from the effects of brian injury and someone who represents victims of acquired brain injury, I know the importance of structure and routine in my child's life. There's nothing like the holidays to disrupt this routine.

Originally posted at InjuryBoard by Michael Phelan

Traps and Pitfalls in Representing Truck Accident Victims

Michael Phelan — Sat, 21 Nov 2009 10:37:19 GMT

Truck accident insurance investigation teams and defense lawyers are some of the most competent adversaries a plaintiff lawyer will encounter. The truck company investigators are often at the scene of the accident before the vehicles are removed from road. They know there is valuable information to be retrieved not only from the scene, but also from the vehicles. They are trained to remove the driver's logs from the truck cab and to download the data from the truck's electronic data systems. These systems include black boxes, GPS, satellite communications systems, and on-board computers. Obviously, much useful information about the truck driver's driving hours and statements about the cause of the accident, as well as the truck's speed, movements, and location may be gleened from the combination of the driver logs and the electronic data. For example, the GPS can show driver location during the course of the driver's trip. Combined with the driver logs, this information could establish that the driver exceeded legal driving hours, which leads to fatigue, sleepiness, and sometimes amphetamine use. The problem some lawyers do not appreciate is that most, if not all, of this data can be legally destroyed by the truck company six months after the accident. Attached is a December 2008 memo from the Federal Motor Carrier Safety Administration which outlines the requirment that truck companies maintain GPS data from truck accidents for six months. I downloaded this memo from an excellent blog by a prominent truck accident lawyer in Tennessee.

Over the years, I have been asked by other lawyers to assist with truck accident cases and have found that in many instances necessary evidence from the truck had not been preserved. Sometimes this is because the victim did not realize the importance of hiring a truck accident laywer right away. Other times it was because the lawyer did not realize that much of the important evidence could disappear six months after the accident. It is crucial to send a preservation letter to the trucking company and get a professional investigation team on the case as soon as possible.

Originally posted at InjuryBoard by Michael Phelan

Defense Neuropsychologists Want to Replace Jurors

Michael Phelan — Mon, 09 Nov 2009 16:14:14 GMT

Defense neuropsychologists are hell-bent on being able to testify whether they believe an injured person is telling the truth. They cannot be serious, you say. Determining the veracity or credibility of a witness is the exclusive province of the finder of fact. They are serious, and they've devoted a lot of time and energy coming up with a "consesus statement" wherein they agree they should be able to provide this testimony. See American Academy of Clinical Neuropsychology Consensus Conference Satement on Neuropsychological Assessment of Effort, Response Bias, and Malingering, The Clinical Neuropsychologist, 23: 1093-1129, 2009.

The crux of the "consensus statement" is that "neuropsychologists are capable and qualified to diagnose malingering," and that this diagosis "can be used to assist the trier-of-fact (e.g., judge, jury) in a legal decision-making process." Id. at 1099. The authors identify the types of people against whom they believe they are likely to offer this testimony. They include people seeking financial compensation for injuries, people seeking to be compensated for time away from work, soldiers injured during combat, and criminal defendants. Id. at 1098. Indeed, defense neuropsychologists have been complicit with the Veterans Administration's disgraceful efforts to deny benefits to our unfortunate soldiers who've suffered brain injuries from blast-induced injuries suffered in Iraq.

These forensic defense neuropsychologists are publishing their own literature and creating their own consensus statement to justify their defense testimony. Rather than get too bogged down fighting them on their own turf, I prefer to stick to long-standing jurisprudence. The neuropsychologists freely admit that they are trying to divine the witness's intent, and comment on his or her veracity and credibility. One passage from the consensus statement says, "[i]n considering the diagnosis of malingering, the clinician is explicitly making a determination of intent: more specifically, a determination of intentionally exaggerated symptoms and/or diminished capability with the goal of obtaining an external reward." Id. at 1097. In other words, they want to testify that your client is lying by either faking symptoms or feigning an inability to perform a task. Fortunately, most states' statutory and/or case law provides that a determination of the veracity or credibility of a witness is the sole province of the jury and not the proper subject of expert testimony. See e.g., Pritchett v. Commonwealth, 263 Va. 182, 186-187 (2002), and Brown v. Corbin, 244 Va. 528, 532 (1992)("The issue of a witness's credibility falls squarely within the jury's province, and is one which a jury can resolve without any expert testimony to assist it.").

Originally posted at InjuryBoard by Michael Phelan

Fredericksburg Tractor Trailer Crash Yields Jail Time for Truck Driver

Michael Phelan — Tue, 27 Oct 2009 10:23:53 GMT

On February 2, 2009, a tractor trailer truck loaded with 83,000 pounds of sand ran a red light on U.S. 17 and killed a Stafford, Va. woman. The truck driver told police he thought the light was green and that he never saw the victim's vehicle. However, police tested the truck and determined that it had no front left brakes and the right front brakes were not working.

The truck driver was convicted of involuntary manslaughter in connection with the tractor trailer truck crash. He was recently sentenced to five years in prison with all but three months suspended. During sentencing, the trucker's attorney admitted that he was driving with faulty brakes-the truck allegedly had 80% of its braking capacity-but argued that the faulty brakes had nothing to do with the crash.

The thought of an 18-wheeler loaded with 83,000 pounds and not having working front brakes is alarming, but not unusual. This is why in civil cases arising from such crashes it is crucial to get to work asap and preserve the evidence. The truck must be inspected before it is repaired. The Federal Motor Carrier Safety Administration (FMCSA) makes public various safety information about trucking companies. It would be interesting to know the identity of the trucking company that owned the truck involved in this Fredericksburg crash and check its safety record on the FMCSA Safety and Electronic Records database (SAFER). I doubt the lack of front brakes is the only safety violation one would discovery in SAFER.

Originally posted at InjuryBoard by Michael Phelan

Department of Labor States Drug Reps are Entitled to Overtime

Zev Antell — Fri, 16 Oct 2009 10:48:53 GMT

The issue of whether Pharmaceutical Sales Representatives ("Drug Reps" as they are sometimes called) are entitled to overtime has been bouncing around and dividing the Federal Courts for several years. However, just yesterday the United States Department of Labor ("DOL") came out and affirmatively stated that Drug Reps are entitled to overtime compensation. In a current suit against drugmaker Novartis, the DOL issued an Amicus, or Friend of Court, brief stating that Drug Reps are non-exempt under the FLSA's Outside Sales Exemption and its Administrative Exemption. This a huge victory for Drug Reps seeking overtime compensation because the Federal Courts often defer to the DOL for proper interpretation of the FLSA. This means that Drug Reps who have previously been denied overtime could be entitled to millions of dollars in unpaid overtime compensation. In fact, it is not a stretch to think that other types of medical products representative may be entitled to overtime as well, provided they do no actual selling.

Originally posted at InjuryBoard by Zev Antell