Richmond Virginia Personal Injury Lawyer

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

Are Enemies of 7th Amendment Outraged About This Frivolous Defense?

Michael Phelan — Thu, 15 Oct 2009 10:29:19 GMT

Let's see if the insurance industry-sponsored lobbyists who call themselves tort reformers hold any press conferences or buy any advertisements to criticize the frivolous defense being put forth in the case where the pet chimpanzee ripped the face off of a woman. I'm not going to hold my breath waiting because this frivolous legal maneuver benefits the defendant chimpanzee owner's insurance company. Consequently, I don't expect any outrage from the so-called tort reformers. They only seem to become outraged when trials guaranteed by the Seventh Amendment to the Constitution benefit individual citizens.

In the case of the maraudering chimp, the attorney representing the owner of the beast that mauled and blinded a woman is calling the attack a work-related incident and said her case should be treated like a workers' compensation claim. The strategy, if successful, would bar the victim's claim against the chimp's owner and limit her damages to whatever is recoverable under the applicable state worker's compensation statute, which statutes typically provide for partial payment of lost wages and payment of medical bills. Claims for permanent disfigurement, pain, humiliation, embarassment and loss of enjoyment of life (sypmtoms one would expect in connection with loss of one's face) are typically not covered by worker's compensation.

Here's the genesis of the worker's comp defense. Sandra Herold owned a tow truck business called "Desire Me Motors." Travis the chimp's face was painted on the side of the tow trucks and he apparently appeared at company promotional events. Sandra Herold lives in Stamford, Connecticut where she keeps the 200-pound chimp. One day in February 2009, Ms. Herold could not get Travis to come into the house from the yard, so she asked her friend and employee Charla Nash to help lure him back into the house Stamford. The animal ripped off Nash's hands, nose, lips and eyelids, and she remains hosptialized. Nash was an employee of Herold's tow truck company. When police arrived at the scene, Travis attacked them too. The police were forced to shoot and kill the chimp. Test results showed that the chimp had the anti-anxiety drug Xanax in his system. Does helping her "friend" lure her friend's pet into the house sound like part of Nash's duties as a tow truck company employee? Not in a million years.

Nash's family filed a lawsuit against Herold, saying she was negligent and reckless for lacking the ability to control ''a wild animal with violent propensities.'' But Herold's attorney filed court papers saying that Nash was working in the scope of her employment with Desire Me Motors at the time of the attack. He argues that Travis was an integral part of the business, and that Nash's claims against Herold are barred by the workers' comp statute. I wonder if he'll be arguing that Travis was a statuory co-employee.

Here's the good news. We don't need tort reform or any other sweeping government intervention into the legal system in order to address this or any other case. The system will likely sort this case out. For the most part, we have excellent trial judges and responsible jurors in this country. I predict that this workers' compensation plea will not succeed.

Originally posted at InjuryBoard by Michael Phelan

Congress One Step Closer to Killing Feres Doctrine

Michael Phelan — Fri, 09 Oct 2009 09:55:37 GMT

The Feres Doctrine is a legal precedent from a 1950 United States Supreme Court decision in which the Court ruled that service members injured in the course of their duties are prohibited from suing the government or any government employee. This Doctrine is the reason why military operating rooms are more dangerous than private operating rooms. For example, the incidence of foreign objects such as sponges, towels, or instruments being left inside the bodies of surgical patients has gone way down to negligible numbers in private hospitals. The reason is because in response to medical malpractice lawsuits, hospitals and surgical staffs instituted standard operationg procedures to count the sponges, towels, and instruments prior to the procedure and before closing the surgical incision. This simple solution has not been adopted in many military hospitals, and, not surprisingly, the problem persists in military operating rooms. The brave men and women who serve our country are the ones who suffer as a result.

The good news is that Representative Maurice Hinchey and Senator Charles Schumer have each sponsored bills to pass the Military Medical Accountability Act which would permit service members to sue the government in certain cases of medical malpractice. The Hinchey Bill was approved on October 7th by the House Judiciary Committee, and would legislatively overturn Feres v. United States. Hinchey named his bill the Carmelo Rodriquez Military Medical Accountability Act of 2009 after the late Sgt. Rodriquez, a marine who served in Iraq and died in 2007 at the age of 29 after a series of extraordinary mistakes and misdiagnoses made by military medical personnel.

Sgt. Rodriquez had a bleeding melanoma which the military doctors continuously misdiagnosed as a birth mark or wart. The one military doctor who correctly diagnosed the melanoma failed to tell Rodriquez the diagnosis or refer him to a cancer specialists. As the skin cancer worsened, Rodriquez's family was unable to get his medical reocrds from the military to give to private doctors for a second opinion. The family went to Rep. Hinchey for help, but it was too late. Sgt. Rodriquez had gone from 190 lbs. to less than 80 lbs.

This bill needs to pass so that our troops have the same rights that we all have under the Seventh Amendment to the Constitution to a trial by jury.

Originally posted at InjuryBoard by Michael Phelan

NFL Players Ass'n Announces Formation of Concussion and TBI Committee

Michael Phelan — Mon, 05 Oct 2009 15:32:45 GMT

Below is the Press Release from the NFLPA Communications Director:

FOR IMMEDIATE RELEASE Contact: Carl Francis

Carl.Francis@nflplayers.com

202-756-9169

NFLPA ANNOUNCES FORMATION OF

CONCUSSION AND TRAUMATIC BRAIN INJURY COMMITTEE

For the past few months, the NFL Players Association, led by Executive Director DeMaurice Smith, President Kevin Mawae, Medical Director Dr. Thom Mayer and Arizona Cardinals wide receiver Sean Morey, has been working on compiling support for a special committee to address the issue of head trauma among professional football players. Today, the NFLPA announces the formation of the Concussion and Traumatic Brain Injury (TBI) Committee.

The NFLPA Concussion and TBI Committee will address two fundamental, timely and critical issues facing professional football players: first, the diagnosis, treatment and prevention of concussions and TBI in active players; and second, the long-term cumulative effects of isolated or repetitive TBI in NFL players as patients in order to discover how these effects can be reduced and eliminated.

DeMaurice Smith issued a statement saying, “The health, safety and welfare of our players is never just an issue of collective bargaining. While we have already raised this issue in the CBA negotiations and Dr. Mayer participated in the first meeting, this committee and the work we do around the health and safety of our players will extend much further. The creation of this committee was designed to bring both independence and expertise to the ongoing analysis of serious head injuries so we can better protect our players. I am confident that Sean Morey and Dr. Mayer will lead this team to gather more comprehensive data and provide real solutions for our players, both past and present.”

The Concussion and TBI Committee will be co-chaired by Sean Morey and Dr. Mayer. It will also be comprised of other active players, former players, researchers in the field of TBI and physicians with expertise in neurological injuries.

# # #

Joanna Comfort
Communications Coordinator, Communications

1133 20th Street, NW
Washington, DC 20036
(P) (202) 756-9170
(F) (202) 756-9310
NFLPLAYERS.COM

Originally posted at InjuryBoard by Michael Phelan

Long Term Risks from Concussions are Real

Michael Phelan — Fri, 02 Oct 2009 16:33:58 GMT

As scrutiny of brain injuries in football players escalated the past three years, with prominent professionals reporting cognitive problems, academic studies supporting an association, and autopsies of former NFL players revealing brain damage resembling advanced Alzheimer's disease, the National Football League and its medical committee on concussions have steadfastly denied the existence of reliable data on the issue. The league pledged to pursue its own studies, including one at the University of Michigan's Institute for Social Research.

The Michigan study commissioned by the NFL reports that Alzheimer’s disease or similar memory-related diseases appear to have been diagnosed in the league’s former players vastly more often than in the national population — including a rate of 19 times the normal rate for men ages 30 through 49. The study has not been peer-reviewed, but the findings are consistent with several recent independent studies regarding NFL players and the effects of their multiple concussions.

Dr. Ira Casson, a co-chairman of the concussions committee who has been the league’s primary voice denying any evidence connecting NFL football and dementia, said: “What I take from this report is there’s a need for further studies to see whether or not this finding is going to pan out, if it’s really there or not. I can see that the [survey] respondents believe they have been diagnosed. But the next step is to determine whether that is so.” The NFL is conducting its own rigorous study of 120 retired players, with results expected within a few years. All neurological examinations are being conducted by Dr. Casson. In any legislative body, a sure way for one to kill a bill one opposes is to recommend that the matter be sent back for further study. It sounds like the NFL is taking pointers from the politicians.

In the meantime, from the Pop Warner to the college football level, hundreds of on-field concussions are sustained each week, with many going undiagnosed and untreated. The players who are properly diagnosed are often released prematurely back to full contact. Youth and college football programs take their cues from the NFL, so it's time for the NFL to step up, acknowledge the problem, and take the lead in prevention.

Originally posted at InjuryBoard by Michael Phelan

If You Thought Texting While Driving Was Dangerous...

Michael Phelan — Mon, 28 Sep 2009 15:15:28 GMT

What could possibly be more dangerous than a teenager texting while driving? how about the driver of an 18 wheeler tractor trailer truck using a computer keyboard on his lap while driving. Hundreds of thousands of long-haul truckers use computers in their cabs to get directions and stay in close contact with dispatchers. Having these devices on-board makes sense. What makes no sense is the trucking industry's position that these devices should be expempted from legislation banning texting while driving.

The trucking industry says these devices can be used safely, posing less of a distraction than BlackBerrys, iPhones and similar gadgets, and therefore should be exempted from legislation that would ban texting while driving. “We think that’s overkill,” Clayton Boyce, spokesman for the American Trucking Associations, said of a federal bill that would force states to ban texting while driving if they want to keep receiving federal highway money. Really? Is it really too much to ask that these truckers pull into a rest stop or off to the side of the road to use their computers? Picture a long-haul trucker who is lost after 6 straight hours of driving. He's going 70 mph with one hand on the steering wheel, one hand on the computer keyboard placed on his lap, and his eyes focused on the computer screen and/or keyboard. That doesn't sound to me like less of a distraction than and iPhone. I would wager that the average, middle-aged truck driver is not nearly as adept at operating a keyboard as is a teenager. No one is arguing that teenagers should be allowed to text while driving.

As the New York Times reports today, some safety advocates and researchers say the on-board computers — which can include a small screen near the steering wheel and a keyboard on the dash or in the driver’s lap — present precisely the same risk as other devices. And the risk may be even greater, they note, given the size of 18-wheel tractor trailers and the longer time required for them to stop.

Some truckers say they feel pressure to use their computers even while driving in order to meet tight delivery schedules.

“We’re supposed to pull over, but nobody ever does,” said Kurt Long, 46, a veteran trucker based in Wagoner, Okla., who hauls flour, sugar and other dry goods.

“When you get that load,” he added, “you go and you go and you go until you get there.”

The trucking industry has invested heavily in technology to wire vehicles. Satellite systems mounted on trucks let companies track drivers, send new orders, distribute companywide messages and transmit training exercises. Drivers can also use them to send and receive e-mail and browse the Internet.

After videotaping truckers behind the wheel, the Virginia Tech Transportation Institute found that those who used on-board computers faced a 10 times greater risk of crashing, nearly crashing or wandering from their lane than truckers who did not use those devices. The study found that truckers using on-board computers take their eyes off the road for an average of four seconds, enough time at highway speeds to cover roughly the length of a football field.

Richard J. Hanowski, director of the Center for Truck and Bus Safety at the Virginia institute, said videotape monitoring of 200 truckers driving about three million miles showed many of them using the devices, even bypassing messages on the screen warning them not to use the devices while driving.

Originally posted at InjuryBoard by Michael Phelan

Experience Counts When Representing Victims of Brain Damage

Michael Phelan — Thu, 24 Sep 2009 11:35:22 GMT

According to the Centers for Disease Control and Prevention, 1.4 million people suffer traumatic brain injuries (TBI). This number is a conservative estimate as brain injuries often go undetected.

TBI’s are caused by a blow or jolt to the head or a penetrating head injury that disrupts the normal function of the brain. Symptoms can include: headaches, confusion, dizziness, ringing ears, sleep disturbances, mood changes, memory problems, behavior changes, short attention span and more. Many of these symptoms are commonly associated with daily stress and may be one reason why many TBI’s are only discovered when it’s too late. This is precisely why advancement in diagnostic technology has been so crucial.

MRI’s can be used to diagnose TBI's. MRI’s also spot some degenerative concerns that can sometimes follow a brain injury:

MRI commonly detects clinically silent (asymptomatic) "brain damage" in the normal population. For example, as we age it is common for myelin in the white matter to degenerate. (Myelin is a jacket of insulation around axons to help them conduct their electrical discharges quickly down the axon.) An MRI can detect this myelin degeneration as white matter hyperintensities. The MRI is also sensitive to cerebral atrophy (shrinkage), another normal phenomenon as we age. Excessive numbers of white matter hyperintensities or excessive atrophy signal a possible neurologic illness, or injury.

Most recently, the 3-Tesla MRI has helped detect the most microscopic of problems by projecting magnetic images that are 30,000 times more powerful than the Earth’s magnetic field! This kind of technology can capture how brain fibers interact with each other and even measure the amount of blood flow between brain tissues.

In selecting an attorney to represent you for a brain injury it’s important to choose someone with experience in representing brain injury cases. You'll need someone who knows what procedures are available for diagnosis and treatment.

If you have suffered a traumatic brain injury, feel free to call Butler, Williams, and Skilling.

Originally posted at InjuryBoard by Michael Phelan