Richmond Virginia Personal Injury Lawyer

Tort Reformers Embrace the Tort System When They Are Injured

Michael Phelan — Mon, 12 May 2008 15:45:07 GMT

When he was 79 years of age, former U.S. Supreme Court nominee, Robert H. Bork, accepted a speaking engagement at the New York City chapter of the Yale Club. As he walked onto the dais, Judge Bork fell backward and injured himself. One might think that Judge Bork took his lumps and refused to sue. After all, he was a long-time advocate of tort reform. Tort reformers propose such things as limiting injured persons' access to the courts, capping recoveries for pain and suffering, and capping contingency fees (thus limiting victims' access to lawyers). So, what did Judge Bork do? He sued the Yale Club for $1,000,000.00, claiming that he suffered "excruciating pain," required surgery and physical therapy, and was left with a limp and a cane. The good Judge said the Yale Club should have had handrails leading up to the dais. The Club countered that the danger was open and obvious, and that Bork was at fault. At age 81, Judge Bork settled the lawsuit for a confidential sum. He can now go back to ranting against the tort system.

Many people who exercise their Seventh Amendment right to file a civil lawsuit seeking compensation for their injuries are injured as badly or worse than Judge Bork. When these folks seek justice, they are attacked by various tort reform groups and politicians. This brings to mind former Pennyslvania Senator, Rick Santorum, another rabid tort reformer. Senator Santorum's wife filed a medical malpractice lawsuit, and her star damages witness was none other than Senator hypocrite.

Tort reformers never cease to amaze me. For the most part, they claim to be champions of small government and free markets, and yet, they advocate activist policies like having the federal government interfere with the rights of citizens to enter into private contracts with lawyers. Of course, these "reforms" only apply when citizens are suing one another (which usually triggers insurance coverage) or a corporation. One never hears the same cry for reform in the context of corporations suing corporations. Another time these "reforms" apparently don't need to apply is when one of the "reformers" gets injured.

Are Blackberries Turning Sour for Employers Who Do Not Pay Overtime?

Bill Tucker — Thu, 01 May 2008 12:20:50 GMT

Many employers provide Blackberries and other remote devices to their employees hoping to increase productivity by allowing the employees to access their email and perform other work from remote places and at odd hours. From a communications standpoint, these devices provide a virtual office to the employee, and also make the employee available at any time. From the employee's perspective, however, having a Blackberry means never being able to escape the office and the call of work. For employers who are not paying overtime to their employees, the Blackberry might just turn sour when the employee makes a claim for unpaid overtime.

Federal law requires employers to pay all employees overtime pay at one and one half ("time and a half") of their normal rate of pay for all hours worked beyond forty in a workweek unless the employer can prove that the employee meets a specific exemption. This federal mandate includes many workers who are paid both on an hourly or a salary basis. Many employers, however, misclassify their employees as exempt when, in fact, they are entitled to overtime pay. In year's past, employees who worked overtime hours away from the office often had difficulty proving that they performed this work. The Blackberry, however, can be used to show that the employer performed this work. For instance, an employee who receives a draft document attached to an email, edits and revises the document, and then sends the revised document to other employees by email has a digital record of the time spent working on that document. Thus, the Blackberry can be used as a "time clock" of sorts, as it reflects an accurate record of the time spent working where none would have existed in the past. For many employees who have been misclassified as exempt from federal overtime pay requirements, and are forced to work significant overtime work, the Blackberry might just be a blessing in disguise.

Here's Why Preemption is a Joke

Michael Phelan — Thu, 01 May 2008 11:33:28 GMT

Aredia, Baycol, Bextra, Celebrex, Fen Phen, Rezulin, Vioxx, and Zyprexa. These are all drugs that were "approved" by the FDA. Does FDA approval mean that the FDA tested these drugs itself? No! The FDA does not have the resources to test the food, medical devices, and drugs it is empowered to regulate. The FDA relies upon the manufacturer seeking approval of its drug or device to test its own product. The manufacturer's clinical trials, animal studies, and other test data is submitted to FDA advisory panels for review. The FDA does not have adequate staff to look behind the data the manufacturer chooses to share with the FDA. How many times in the past 15 years has the FDA learned after approving a drug that the manufacturer withheld or hid during the drug approval process critical safety or efficacy information. Oops, we forgot to submit that offshore clinical trial that showed a strong association between our drug and strokes! To compound the problem, the FDA advisory panels are fraught with conflicts of interest. It is not uncommon for the manufacturer seeking approval of a drug to have paid consulting fees to members of the FDA advisory panel charged with regulating the drug.

The most recent example of the fallacy of treating FDA approval as some sort of gold standard is the heparin debacle. American companies like Scientific Protein Laboratories, which supplied the contaminated heparin to Baxter International, which manufactured and distributed the finished heparin, have decided to outsource supply and production for some of their products to China. In the case of heparin, the pig intestine product is coming from the bowels of rural China. The FDA has now identified Changzhou, SPL, a Chinese subsidiary of Scientific Protein Laboratories, as the source of the contaminated heparin that has killed over 80 people. According to a Congressional investigator, the contaminated crap used by Chagzhou cost $9.00 a pound compared with $900.00 a pound for heparin. Once again, Americans are being killed unnecessarily because a company put profits over safety.

And get this! The FDA admits it neglected to inspect the Changzhou plant, and China is now refusing to permit the FDA to inspect the plant in the future. Does this sound like the FDA has the wherewithal to guarantee the safety of a product that gets injected into the bloodstream?

Incredibly, the argument put forth in products liability cases involving unsafe drugs by the Administration and the Supreme Court in favor of denying an injured American his or her Seventh Amendment right to a trial by jury boils down to the fact that the drug was "FDA approved." Yet, the bipartisan consensus in Congress is that the FDA needs a rapid increase in its budget to be able to ensure the safety of the nation's drugs, medical devices, and food. The Bush Administration's response was to propose a budget for the FDA that does not even cover its expected cost increases. It's time to take cronyism out of this equation. Product safety must be the goal, not appeasing the interests of the drug manufacturers. Until the FDA has the resources to ensure product safety, the concept of federal preemption of drug cases is a joke.

Court Orders Counsel to Send Notice of Right to Participate in Wage and Hour Lawsuit to Time Share Salespeople

Bill Tucker — Fri, 25 Apr 2008 16:39:09 GMT

On April 23, 2008 the law firms of Butler Williams & Skilling and Cupp & Cupp sent Notice to current and former salespeople of Great Eastern Resort Corporation of their right to participate in a lawsuit seeking unpaid overtime compensation and unpaid minimum wages. The action was brought as a representative action under the Fair Labor Standards Act by two former Time Share Salespeople. The Circuit Court for Rockingham County authorized Butler Williams & Skilling and Cupp & Cupp to send the Notice to 629 former and current salespeople and "Takeover managers" of Great Eastern who worked any time after April 24, 2005. In order to be included in the lawsuit, the employees must file a written Consent to Become a Party, which is attached to the Notice, any time before July 22, 2008.

Butler Williams & Skilling, PC and Cupp & Cupp, PC represent a group of timeshare salespeople at Massanutten Resort in Harrisonburg, Virginia. The salespeople are employed by Great Eastern Resort Corporation, which is managed by the Berkley Group of Fort Lauderdale, Virginia, and are paid on a commission basis. The lawsuit asserts that the salespeople are entitled to unpaid overtime and minimum wages under the Fair Labor Standards Act, which is the federal law governing overtime and minimum wages.

Many timeshare sales employees work more than forty hours each week and are not paid overtime. In January 2007 the U.S. Department of Labor issued a Letter Opinion that supports the payment of overtime to timeshare salespeople in many situations. We are interested in talking to current or former employees of Great Eastern and other resorts to discuss industry compensation practices and the claims asserted in the pending Massanutten case.

Accelerated Cognitive Decline Years After Traumatic Brain Damage

Michael Phelan — Thu, 24 Apr 2008 17:22:58 GMT

When representing victims of traumatic brain damage, I typically ask the treating physicians whether, to a reasonable degree of medical probability, he or she can say that, as a result of the head injury, the victim is at an increased risk of developing dementia later in life. The answer I often heard was the link between a traumatic brain injury and increased risk of dementia was not well-settled in the literature.

I read a blog about a prospective study of brain injured Vietnam combat veterans which cited an interesting article in the journal, Brain. The study by Raymont, et al. looked into the possibility of cognitive decline (as opposed to dementia) many years following a head injury, and found evidence that patients with penetrating head injury, compared with matched controls, demonstrated significantly exacerbated decline in general intelligence. This study is consistent with earlier studies which supported the concept of exacerbated decline after traumatic brain injury.

These findings are significant as traumatic brain injury is the primary cause In the U.S. of death and disability in those under 35 years of age. Each year approximately 55,000 deaths are caused by a traumatic brain injury and an additional 50,000 people suffer from TBI-related cognitive, behavioral, and social deficits. Raymont, et al. (citing Kraus and McArthur, 1996). As the New York Times has reported, traumatic brain injury is the signature injury of the Iraq war, with nearly two-thirds of injured U.S. soldiers sent from Iraq to Walter Reed Army Medical Center having been diagnosed with traumatic brain injuries. Unfortunately, the news coverage of this tragedy also reveals that Walter Reed and the entire VA system are under-diagnosing brain injuries in returning soldiers, so the numbers are likely much higher. Moreover, the quality of care the soldiers are receiving is atrocious. The bottom line is that these returning soldiers face a lifetime of problems, including accelerated decline in general intelligence in later years.

Senate fails to protect employees from intentional pay discrimination

Joshua Laws — Thu, 24 Apr 2008 14:50:35 GMT

If an employer discriminates against an employee in their compensation, the employee now may have as little as 180 days to fight that illegal discrimination. If the employee fails to object within 180 days, that employee can be discriminated against in every paycheck thereafter, forever, with no right to challenge the discrimination.

That is the result of the Senate's failure to pass the Lily Ledbetter Fair Pay Act. The House passed the bill in response to the U.S. Supreme Court's decision Ledbetter v. Goodyear, 127 S. Ct. 162 (2007). The Court held that when a company intentionally discriminates in setting an employee's pay it only discriminates at that time and not when every subsequent pay check is issued. President Bush had threatened to veto the Act, arguing that employer's needed to know that employee's claims expired closer to when the discriminatory decision was made. You know, to be fair.

This creates a very narrow window for employees to challenge an employer's discriminatory actions. It puts incredible pressure on employees to be diligent in discovering and objecting to discrimination. So if you feel you've been discriminated against don't wait for your time to object to run out. Be assertive and don't let yourself be intimidated. That's how they win and you lose.

Congress likely to pass ban on Genetic Discrimination

Zev Antell — Thu, 24 Apr 2008 10:31:20 GMT

Imagine if you could take a simple blood test to determine whether you were likely to get cancer in the near future. Armed with that information, you would be vigilant and do everything in your power to ensure early detection and treatment. Now imagine that taking that test and receiving that life-saving information could also lead to you losing your job or result in your inability to get health insurance. Doesn't seem fair, does it? Of course not! It seems obvious that employers and insurers should not be able to discriminate based on a person's genetics. However, Federal Law currently provides no such protection. Fortunately, Congress, and indeed the Administration, now appear poised to remedy the situation.

Today, the Senate is likely to pass the Genetic Information Nondiscrimination Act. A similar Bill previously passed in the House and was supported by the President. The Act would make it illegal for employers to use a person's genetic information when making employment decisions. The Act also restricts the ability of Insurers to use of genetic markers or predispositions as justification for rejecting coverage or increasing premiums.

Hopefully, this Act will not only prevent ugly discrimination, but also save lives.

BREAKING: Law favors employers over employees - even in arbitration

Joshua Laws — Mon, 21 Apr 2008 16:03:38 GMT

It's no secret that federal and state law tends to favor employers over employees. In the beginning, there was at-will employment. In the end, there will be at-will employment. But once an employee prevails in a fact finding hearing before a neutral, unbiased arbiter, then the employee can finally rest easy knowing that their efforts have been vindicated, right?

Unfortunately, no. According to a study by Labor and Employment law researcher Michael LeRoy at the University of Illinois College of Law, employee victories in arbitration are affirmed by state courts 56% of the time while employer victories are affirmed 86% of the time. This means that an employee's victory in arbitration is in much greater danger of being overturned than an employer's victory.

This creates an additional roadblock for employees. Besides the expense and lack of leverage most employees have, they now find themselves at greater risk of losing once they've won. For employees, a win is a win except when it isn't.

Criticism of Defense Malingering Test Gaining National Traction

Michael Phelan — Sun, 20 Apr 2008 19:38:23 GMT

On March 5, 2008, I criticized the use by professional defense neuropyschologists of a controversial malingering test called the Fake Bad Scale. See Fake Bad Scale: Weapon of Defense Neuropsychologists, http://www.injuryboard.com/members-area/BlogPost.aspx?blogid=372&postid=232632. In that blog, I pointed out the fact that the test was designed so that a person with traumatic brain damage and/or serious physical injuries was likely to fail the Fake Bad Scale (FBS) and be deemed a malingerer or faker.

I was interviewed by Sylvia Hsieh of Lawyers Weekly USA who has since published an excellent article on the topic. Click here to read Sylvia's article on the Fake Bad Scale. http://www.lawyersweeklyusa.com/index.cfm/archive/view/id/430456

Ms. Hsiegh correctly points out that the FBS is biased against women, the disabled (including physical and cognitive disabilities), and those suffering from post-traumatic stress disorder. Thanks to the good work of trial lawyer Dorothy Clay Sims, a Hillsborough County, Florida court ruled that the FBS was "not an objective measurement of effort, malingering, or over-reporting of symptoms."

Perhaps the most outrageous use of the FBS has been against wounded Iraq war veterans and defense contractors. Ms. Hsiegh reports that the FBS has been used in suits brought under the Defense Base Act against returning Iraq war contractors who claim post-traumatic stress disorder. I've also read about the FBS being used against war vets to deny coverage or treatment for claimed brain injury symptoms caused by brain damage suffered during roadside explosions. Our government should not be using this bogus test to demean our brave soldiers!

Would You Choose To Be Treated By Your State's Worst Doctor?

Michael Phelan — Fri, 18 Apr 2008 15:33:40 GMT

Last month, lawyers for former patients of Dr. John Anderson King and their families settled 70 medical malpractice claims with the Hospital Corporation of America, the nation's largest for-profit hospital chain, and Putnam General Hospital, which employed King from November 2002 to June 2003. This month, lawyers settled 11 more medical malpractice lawsuits with the company that employed King to perform surgery.

King served as an osteopathic physician on Putnam General's staff between November 2002 and June 2003. During those seven months, King's actions generated 124 different medical malpractice suits. Are you kidding me? At what point should the hospital have clued into the fact that this doctor was a serial screw up? Insurers for doctors and hospitals simply do not settle medical malpractice claims unless they have merit.

In order to avoid being treated by one of the worst doctors in your state, do some research. Get references from friends and trial lawyers in your area. The lawyers know who are the best and worst doctors. Also, check your state's board of medicine website. These sites often will tell you whether a doctor has been disciplined and will tell you how many malpractice claims have been filed against and paid on behalf of the doctor. Most doctors are fabulously talented professionals. You need to avoid the bottom of the barrel.

In November, King filed for bankruptcy in Birmingham, Ala., claiming only $500 in assets. He has filed an application to become a Tennessee real-estate appraiser. Just keep him away from sharp instruments!