ATV (all-terrain vehicles) Accidents – What You Need To Know

A car accident also known as a traffic collision, automobile accident, road traffic collision or car crash can be a terrible event. In the same vein, ATV (all-terrain vehicles)accidents can be devastating.

When a ATV collides with another vehicle, pedestrian, animal, road debris, or other stationary obstruction, such as a tree or utility pole or overturns the resulting collisions may cause injury, death, vehicle damage, and property damage.

A number of factors contribute to the risk of collision, including vehicle design, speed of operation, road design, road environment, driver skill and/or impairment, and driver behavior.

Vehicular collisions lead to death and disability as well as financial costs to both society and the individuals involved.

Since ATVs were introduced in the early 1970s, they have become increasingly popular. Many families use ATVs for weekend activities. But with increased use accidents and injuries have also increased. As reported by the Consumer Product Safety Commission, as of 2012 over 100,000 ATV injuries were recorded. It is estimated that 25,000 of these ATV related were to children younger than 16 years of age. Over 2,900 children died from ATV-related accidents between 1982 and 2012, .

ATVs especially older ones are so dangerous because of their design. As the result of safety concerns expressed by the federal government almost 30 years ago ATV manufacturers entered into a consent decree in 1988. In the consent decree, manufactures agreed to halt production of three-wheeled ATVs, to provide safety training for new owners, to place warning labels on their products, and to make recommendations about what size of ATV is appropriate for different age groups. In 1998 the consent decree expired but ATV manufacturers have pledged to continue to follow most of its provisions.

Nevertheless because ATVs generally get far less use the cars or trucks many older ATVs are still in use and very dangerous.

Whether an ATV was made before or after 1988, they still all have common safety issues. Including many have no frame protecting the operator in the event of an accident. ATVs tend to ride on large, low-pressure tires that can have difficulty gripping the rough terrain over which they travel. Many have hand-operated brakes, which operated incorrectly can cause an ATV to overturn as one attempts to bring them to a stop.

As well ATVs have relatively large engines for their size and weight. Some ATVs are capable of speeds as high as 70 mph. At that speed while often going across broken and uneven terrain an accident is likely. Many ATVs are not designed for passengers but folks allow others to ride on the ATV again creating a potentially dangerous situation that can lead to death or injury.

Pre 1998 three-wheeled ATVs are less stable than the current four-wheeled ATVs, but even the four-wheeled models can be top-heavy and prone to serious rollover accidents causing death and injury.

Notwithstanding design changes the number of injuries and deaths per year attributable to ATV accidents continues to rise. The problem is twofold. One reason the number of injuries and deaths continue to rise is because the use of ATVs is increasing, it is a popular activity. AS well, ATV makers are building more powerful ATVs and marketing them to younger and younger children. Parents often and wrongfully believe these ATVs are “toys.”

One recent slick marketing tool is the “transitional” ATV. This ATV is sized between the smaller ATVs intended for children and a full-sized adult ATV. These “transitional” ATVs are marketed to generally teenage boys in the 14 to 15 year-old age group. And we all know how safety cautious 13 to 16 year-olds are. Kids in this age generally have no fear and without proper training, guidance and supervision there is an increasing likelihood of serious injuries or death.

As a group ATV manufacturers have fought any attempt to impose regulations on ATV ownership or use (such as age limits and mandatory helmet laws).

In my practice I have handled claims against various manufacturers of vehicles, including ATV and Motorcycles. If you or someone you know has been injured or killed while riding an ATV, please contact me, Richard M. Katz, Esq. at 626-796-6333 so that my office can help protect your legal rights. Visit us at our website https://www.lawyer-personal-injury-law.com

 

 

What Everybody Ought To Know About The Kaiser Permanente Arbitration Process for Medical Malpractice Claims

It is no secret that Kaiser Permanente is the largest delivery system of its kind in the United States and has more than nine million members. In California they require all members of the organization to resolve all disputes related to claims for medical malpractice through a binding arbitration system. Members of Kaiser Permanente (Kaiser Foundation Health Plan, Kaiser Foundation Hospitals, Southern California Permanente Medical Group, Northen California Permanente Group) either directly or through their employer sign a binding arbitration agreement.

Many victims feel that somehow the arbitration process compromises their claim or ability to be compensated for their injuries. Clients often come to me and ask me “how do I get out of that arbitration system? ” Based upon my many years of experience and many victories against Kaiser Permanente, I assure them, that arbitrating a medical malpractice case against Kaiser Permanente depending on the circumstances of their claim may be beneficial.

A Brief History of Arbitrations
Our judicial system favors arbitrations. The arbitration statutory procedures are set forth in Code of Civil Procedure §1280, et seq. and the Kaiser Permanente arbitration rules. There are many state and federal court cases upholding the validity of private arbitrations, enforcement of private arbitration agreements, and enforcement of private arbitration awards.

Once arbitrations were problematic for claimants / plaintiffs because the healthcare provider / insurer had the money, manpower and volume of cases to manipulate the arbitration system to their advantage. This was especially true for Kaiser Permanente (Kaiser Foundation Health Plan, Kaiser Foundation Hospitals, Southern California Permanente Medical Group, Northen California Permanente Group). This really was a problem and the propensity to manipulate the system was discussed in the case of Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951.

In the California Supreme Court in the Engalla case found that Kaiser Permanente (Kaiser Foundation Health Plan, Kaiser Foundation Hospitals, Southern California Permanente Medical Group) was manipulating the arbitration system. The Court found they were manipulating the system. One method they used was delaying the selection of a neutral arbitrator, which made it difficult to get cases resolved timely. There were instances when the claimant died during the pendency of the claim because of delays.

In the face of having their entire arbitration system disbanded Kaiser Permanente (Kaiser Foundation Health Plan, Kaiser Foundation Hospitals, Southern California Permanente Medical Group) established the Office of the Independent Administrator (OIA). This independent law office acts as a third party overseeing the entire Kaiser Permanente arbitration system. They have established a screening process for arbitrators and require all parties to comply with the arbitration rules. I think the system is fair and equitable. However, for that to be true, you must have an attorney who is experienced with the process Kaiser Permanente arbitration process from selecting an arbitrator to presenting evidence. Frankly, it is my opinion that arbitrating a case correctly is just as demanding as going to trial.

The Skill of Your Attorney is Important
Your attorney must have the background, training and experience to understand and navigate the arbitration process. If he or she does have that experience then good results are probable. In all arbitration processes the “key” is getting a real “neutral” neutral arbitrator. In Kaiser Permanente arbitrations they pay half or all of the neutral arbitrator’s fees. The challenge is that Kaiser Permanente has hundreds of cases where a neutral arbitrator can serve. This raises the specter that a neutral arbitrator may find for Kaiser Permanente (Kaiser Foundation Health Plan, Kaiser Foundation Hospitals, Southern California Permanente Medical Group, Northen California Permanente Group) to “keep the cases coming.”

My experience with the neutral arbitrators that I have used has not shown that. I have had several cases in which neutrals have award 100s of thousands of dollars to more than 1 million dollars. It is my experience that there is many honest and honorable neutral arbitrators who will not be “unduly” swayed by the money issue. Based upon my experience and network of attorneys I know which neutrals are the truly neutral arbitrators. I generally do not have difficulty getting Kaiser Permanente to agree with the selection of a neutral to hear a case. As well, although both parties are entitled to party arbitrators, over the years I have moved away from using party arbitrators because I think it adds another layer of complexity to the case and places an adverse advocate in the room with the neutral.

If your attorney has the experience, knowledge and ability a claimant can get a reasonable neutral arbitrator and Kaiser Permanente (Kaiser Foundation Health Plan, Kaiser Foundation Hospitals, Southern California Permanente Medical Group, Northen California Permanente Group) will pay the arbitrator’s entire fees. This will save you thousands of dollars and you will get a timely fair hearing.

Arbitration v. Trial
My experience has caused me to conclude that if a claimant has a strong liability case, the claimant has a higher probability of a successful result in arbitration than before a jury. I believe this to be true because the neutral arbitrators or arbitration panels that I have used are knowledgeable professionals who understand medicine and understand the medical/legal issues and are not easily bamboozled by slick experts. Nor are they intimidated by doctors or lawyers.

With juries you are dealing with twelve lay people (in state court) whom we must educate often in complex areas of medicine. I think if they do not understand the medicine, Plaintiff loses. If they do not understand the complex and confusing jury instructions Plaintiff loses. If they do not like the Plaintiff, you will probably lose.

However, if you win the liability aspect of your medical malpractice case, with a jury, your general damages are limited to $250,000.00. So even if a jury were likely to award a larger damage award then an arbitrator, the law caps the general damages at $250,000.00. I have not personally had a situation in which we prevailed on liability in an arbitration and had the arbitrator give inadequate damages for pain and suffering. Not saying this is always true but that has been my experience.

Concluding Thoughts
There is a myriad of variables that present in all medical malpractice claims, whether against Kaiser Permanente (Kaiser Foundation Health Plan, Kaiser Foundation Hospitals, Southern California Permanente Medical Group, Northen California Permanente Group) or other healthcare provider. If you find yourself in the unfortunate situation of being a medical malpractice victim of Kaiser Permanente (Kaiser Foundation Health Plan, Kaiser Foundation Hospitals, Southern California Permanente Medical Group, Northen California Permanente Group) it is imperative that you choose a personal injury that has the skill training and experience to litigate in the arbitration venue. An attorney with experience and a good track record will give you the best possible chance of reaching your goal of successfully settling or winning your claim.

If you or someone you know has been a victim of medical negligence arising from the care and treatment provided to you by Kaiser Permanente (Kaiser Foundation Health Plan, Kaiser Foundation Hospitals, Southern California Permanente Medical Group, Northen California Permanente Group) please feel free to give me, Richard M. Katz, a call at 626-796-6333. We are found at 1122 East Green Street, Pasadena, CA. 91106.
My website is lawyer-personal-injury-law.com

FOOD POISONING – FOODBORNE GERMS IS AN ONGOING THREAT

The Centers for Disease Control issued an alarming report today concerning the problems of foodborne germs.

Foodborne germs, that are antibiotic resistance is a continuing public health threat. The Centers for Disease Control and Prevention found that every year, antibiotic-resistant infections from foodborne germs cause an estimated 430,000 illnesses in the United States. Multi-drug resistant Salmonella, from food and other sources, causes about 100,000 illnesses in the United States each year.

Bacteria and viruses are the most common cause of food poisoning. The symptoms and severity of food poisoning vary, depending on which bacteria or virus has contaminated the food. The bacteria and viruses that cause the most illnesses, hospitalizations, and deaths in the United States are Salmonella, Norovirus (Norwalk Virus), Campylobacter, E. coli, Listeria and Clostridium perfringens. Foodborne illness in the United States causes an estimated 48 million illnesses and 3,000 deaths each year.

If you have eaten contaminated food, the onset of symptoms may occur within minutes to weeks and often presents itself as flu-like symptoms. Symptoms such as nausea, vomiting, diarrhea, or fever are common. The symptoms are often flu-like and many folks may not recognize that the illness is caused by pathogens or harmful bacteria.

Although recent data revealed that multi-drug resistant Salmonella decreased during the past decade. Unfortunately, Salmonella typhi, the germ that causes typhoid fever, resistance to quinolone drugs increased to 68 percent in 2012, raising concerns that one of the common treatments for typhoid fever may not work in many cases.

The Salmonella that has been linked to recent outbreaks associated with poultry. Is resistant to ceftriaxone, a cephalapsorin drug. Ceftriaxone resistance is a problem because it makes severe Salmonella infections harder to treat, especially in children.

A report from Centers for Disease Control NARMS compares resistance levels in human samples in 2012 to a baseline period of 2003-2007. According to Robert Tauxe, M.D., M.P.H, deputy director of CDC’s Division of Foodborne, Waterborne, and Environmental Diseases
“Our latest data show some progress in reducing resistance among some germs that make people sick but unfortunately we’re also seeing greater resistance in some pathogens, like certain types of Salmonella,” He said. “Infections with antibiotic-resistant germs are often more severe. These data will help doctors prescribe treatments that work and to help CDC and our public health partners identify and stop outbreaks caused by resistant germs faster and protect people’s health.”

The President’s budget for 2015 requests funding for CDC to improve early detection and tracking of multidrug resistant Salmonella and other urgent antibiotic resistance threats. The proposed initiative would increase CDC’s ability to test drug-resistant Salmonella. With a $30 million annual funding level over 5 years, CDC estimates that it could achieve a 25 percent reduction in multidrug resistant Salmonella infections, as well as significant reductions in other resistant infections.

What this all means is you need to be careful. Bacteria multiply rapidly between 40 °F and 140 °F. Remember to keep cold food cold and hot food hot. Store food in the refrigerator (40 °F or below) or freezer (0 °F or below). Always cook food to a safe minimum internal temperature.
Beef, pork, lamb and veal steaks, chops, and roasts should be cooked to a minimum internal temperature of 145 °F as measured with a food thermometer before removing meat from the heat source. For safety and quality, allow meat to rest for at least three minutes before carving or consuming. For raw ground ground beef, pork, lamb, and veal cook to an internal temperature of 160 °F as measured with a food thermometer. All poultry should be cooked to a minimum internal temperature of 165 °F as measured with a food thermometer.

In case of suspected foodborne illness use this general guidelines:
Preserve the evidence. If a portion of the suspect food is available, wrap it securely, mark “DANGER” and freeze it. Save all the packaging materials, such as cans or cartons. Write down the food type, the date, other identifying marks on the package, the time consumed, and when the onset of symptoms occurred. Save any identical unopened products.

Seek treatment as necessary. If the victim is in an “at risk” group, seek medical care immediately. Likewise, if symptoms persist or are severe (such as bloody diarrhea, excessive nausea and vomiting, or high temperature), call your doctor.

Call our office and we can assist you further. We are always here to help. Please call us, the Law Offices of Richard M. Katz at 626-796-6333. We are located at 1122 East Green Street, Pasadena, California 91106. We are here to assist you on your personal injury claims.

Unanimous Supreme Court Holds: Police Need Warrants to Search Cellphone Data

The Supreme Court in a unanimous ruling by Chief Justice John Roberts, said that information contained in modern handheld devices is constitutionally protected. The Supreme Court rejected arguments that cellphones fell under a longstanding exception to the warrant requirement. That exception allowed police to search the contents of a suspects clothing to ensure the suspect was unarmed and / or destroy evidence.

This ruling was viewed by some as a sweeping victory for privacy rights in the digital age. The decision will offer protection against warrantless searches to the 12 million people arrested every year, many for minor offenses. Some believe the ruling will very likely apply to searches of tablets and laptop computers.

In article dated June 25, 2014, The Wall Street Journal quoted Orin S. Kerr, a law professor at George Washington University as stating “This is a bold opinion. It is the first computer-search case, and it says we are in a new digital age. You can’t apply the old rules anymore.”

Chief Justice John G. Roberts Jr., writing for the court, acknowledged how pervasive cellphones are in today’s world. He he said, “such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” And that their contents are protected from routine searches. Chief Justice Roberts wrote, that the use of “general warrants,” that “allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity” was one of the factors in the American Revolution. He added that “The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the founders fought.”

In other criminal cases, this Supreme Court has not been particularly sympathetic to defendants and other complainants who have been arrested. Our state and federal courts have often allowed warrantless searches in connection with arrests because of the need for the safety of an officer and the public, i.e. armed suspect or to prevent a suspect from destroying evidence.

Chief Justice Roberts wrote that “once an officer has secured a phone and eliminated any potential physical threats, however, data on the phone can endanger no one.” The Court also noted that the police may turn off a phone, remove its battery or take other reasonable steps to prevent the remote possibility of evidence being destroyed by “remote wiping” or other encryption programs.

Chief Justice Roberts commented that should the police confront an authentic “now or never” under the concept of “exigent circumstances” warrantless search is permitted under constitutional law.

Chief Justice Roberts wrote “According to one poll, nearly three-quarters of smartphone users report being within five feet of their phones most of the time, with 12% admitting that they even use their phones in the shower.” He recognized the reality that a cellphone is much more than a phone commenting that “ They could just as easily be called cameras, video players, Rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps or newspapers.”

Chief Justice Roberts said “Cellphones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals.” However he went on to say that “Privacy comes at a cost.”

While the privacy rights of millions have been protected from government intrusion how many people out there post everything for the world to see. From personal the personal to the intimate to criminal activity? The law does not protect one from their own folly does it?

Medical Malpractice: Time Limitations

In California and is all states there exists strict time limits on when you can file a medical malpractice lawsuit. The time limits vary from state to state. So if you believe you have a medical malpractice claim whether in California or elsewhere it important to contact a local personal injury who handles medical negligence claims and he or she can tell you what the statute of limitations is.

A statute of limitations is the deadline for filing a lawsuit. Most lawsuits MUST be filed within a certain amount of time. In general, once the statute of limitations on a case “runs out,” the legal claim is not valid any longer. The tragedy is that if you have a valid claim but decide to pursue it after the time limit (statute of limitations) has run out, you are out of luck. I have at least one call a week in which that is the case, someone waited to long.

The lesson from all this is: do not keep your suspicions about medical negligence / medical malpractice a secret. If you suspect that you, or a loved one has been the victim of medical negligence, find a medical malpractice lawyer to discuss your concerns with. Most experienced medical malpractice attorneys will provide an initial free consultation either by telephone or in person. Often times he or she will be willing to look at some medical records or review a summary that you have prepared at no charge. Our office offers this service.

One of the most important things you will likely learn by consulting with a medical malpractice attorney is the type of the probable statue of limitations for your claim. For example, in California if a medical malpractice incident involves a private healthcare provider and the victim is an adult the California Code of Civil Procedure § 340.5 provides “In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person.

For minors, not including birth related injuries, which is covered by a different statute, California Code of Civil Procedure § 340.5 provides for such minors as follows: “Actions by a minor shall be commenced within three years from the date of the alleged wrongful act except that actions by a minor under the full age of six years shall be commenced within three years or prior to his eighth birthday whichever provides a longer period. Such time limitation shall be tolled for minors for any period during which parent or guardian and defendant’s insurer or health care provider have committed fraud or collusion in the failure to bring an action on behalf of the injured minor for professional negligence. ”
For claims involving medical malpractice claims involving California state public / governmental entities the following general guideline applies to medical negligence claim being made against a a public entity (including the state of California, a county, city or special district), including employees. A written claim must be filed. The current law required that the written claim be filed within six (6) months of the loss, even if the claimant is a minor. If the claim is not approved, a legal action must then be filed within a specified time.

You should know that many medical malpractice lawyers will not take on a new case when a claimant / injured party contacts them shortly before a statute of limitations is likely to run. There are exceptions but you must understand that an personal injury attorney / medical malpractice attorney needs enough time to properly consider and evaluate your claim. It can often take weeks or months to obtain medical records and then evaluate them.

So, do not be a victim twice, if you believe you or a loved one has been hurt because of medical negligence, seek legal counsel. Please feel free to give me a call if you live in California and believe you may have a claim. You may contact me Richard M. Katz at 626-796-6333. Our website address is www.lawyer-personal-injury-law.com.

Sympathy Does Not Work at Trial! I Dare You to Watch “Le poids des apparences | The importance of appearances”

I always tell my clients sympathy does not work at trial.  Although an initial reaction of a judge or jury may be sympathy, the sympathy does not last long. When is the last time you saw a “homeless person?” Perhaps initially you felt some sorrow or sympathy but did you give them money, food or even the time of day? A shocking video proves what I have learned in over 35 years of practice.

In a staged event by a French comic, who goes by the name Norni Tube (at least on Youtube) in a short clip, entitled ‘Le poids des apparences | The importance of appearances.’ The video shows two scenarios. In the first “experiment” an actor is shabbily dressed.  His call for help are ignored by people walking by, you will actually see people looking over and “sneak” a look in his direction. Ultimately, the actor gets up and leaves. Later in the video, the same actor dressed as a business man, wearing a suit and tie again collapses at the  same location, this time people come to assist almost immediately.

Norni Tube stated in his description of the video (translated from French) ” I’ve never been so sad and shocked while filming as I was for this experience.
I hope this video will make you want to help anyone. regardless of its appearance.” 

 

 

Appearances

Please take the time to watch the ‘Le poids des apparences | The importance of appearances.’

Sympathy? What sympathy?

What would you have done?

 

 

UP TO 40 PERCENT OF ANNUAL DEATHS FROM EACH OF FIVE LEADING CAUSES ARE PREVENTABLE

According to the Centers for Disease Control and Prevention, each year, nearly 900,000 Americans die prematurely from the five leading causes of death . However, the Centers for Disease Control estimate that a large percentage of those deaths 20 percent to 40 percent from each cause could be prevented. The percentage varies greatly from state to state.

In the United States the five leading causes of death are heart disease, cancer, chronic lower respiratory diseases, stroke, and unintentional injuries. Collectively they caused 63 percent of all U.S. deaths in 2010. Unintentional injuries include car accidents, slip and fall accidents and other personal injury accidents. The Institute of Medicine’s (IOM) seminal study of preventable medical errors estimated as many as 98,000 people die every year from medical negligence and is the sixth leading cause of death in the United States.

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The report, in a recent issue of the CDC’s weekly journal, Morbidity and Mortality Weekly Report, examined premature deaths (before age 80) from each cause for each state from 2008 to 2010. The authors then calculated the number of deaths from each cause that would have been prevented if all states had same death rate as the states with the lowest rates.

The study suggests that, if all states had the lowest death rate observed for each cause, it would be possible to prevent:

34 percent of premature deaths from heart diseases, prolonging about 92,000 lives
21 percent of premature cancer deaths, prolonging about 84,500 lives
39 percent of premature deaths from chronic lower respiratory diseases, prolonging about 29,000 lives
33 percent of premature stroke deaths, prolonging about 17,000 lives
39 percent of premature deaths from unintentional injuries, prolonging about 37,000 lives

 

Tom Frieden, MD, MPH was quoted in a CDC article as stating “As a doctor, it is heartbreaking to lose just one patient to a preventable disease or injury – and it is that much more poignant as the director of the nation’s public health agency to know that far more than a hundred thousand deaths each year are preventable,”. “With programs such as the CDC’s Million Hearts initiative, we are working hard to prevent many of these premature deaths.”

Not surprisingly, there are many modifiable risk factors that are largely responsible for each of the leading causes of death, the CDC cites :

Heart disease risks include tobacco use, high blood pressure, high cholesterol, type 2 diabetes, poor diet, overweight, and lack of physical activity.

Cancer risks include tobacco use, poor diet, lack of physical activity, overweight, sun exposure, certain hormones, alcohol, some viruses and bacteria, ionizing radiation, and certain chemicals and other substances.

Chronic respiratory disease risks include tobacco smoke, second-hand smoke exposure, other indoor air pollutants, outdoor air pollutants, allergens, and exposure to occupational agents.

Stroke risks include high blood pressure, high cholesterol, heart disease, diabetes, overweight, previous stroke, tobacco use, alcohol use, and lack of physical activity.

Unintentional injury risks include lack of seatbelt use, lack of motorcycle helmet use, unsafe consumer products, drug and alcohol use (including prescription drug misuse), exposure to occupational hazards, and unsafe home and community environments.

As you can see by making changes in personal behaviors many of the risks are avoidable. Others risk factors are attributable to disparate conditions in social, demographic, environmental, economic, and geographic attributes of the local areas in which people work and live.

The study authors note that if health disparities were eliminated, as called for in Healthy People 2020 all states would be closer to achieving the lowest possible death rates for the leading causes of death.

Harold W. Jaffe, MD, the study’s senior author and CDC’s associate director for science was quoted in the CDC article as saying “We think that this report can help states set goals for preventing premature death from the conditions that account for the majority of deaths in the United States,” He was further quoted as saying “Achieving these goals could prolong the lives of tens of thousands of Americans.”

One can learn from these findings and change their and their family’s lifestyle for a healthier life.

Snatch Defeat from the Jaws of Victory – A Trial Attorney’s Nightmare

The phrase has been around along time and many attorney’s prove it true time after time.  Sometimes the old saying “less is more” should be employed.

The phrase “snatch defeat from the jaws of victory” was used in a New York Times sports story dated March 5, 1891.  A sports reporter of a baseball game was sorely disappointed by the performance of a team named the White Stockings and he wrote:
The White Stockings yesterday earned their third defeat for the season. They were badly self-whipped, and in this lies their humiliation. Were they fairly defeated after having played a creditable game there would be no censure for them; but when they snatch defeat from the jaws of victory there can be little sympathy for their deserved misfortune.

This phrase must be ringing in the ears of an attorney who recently had a $900,000 jury award in an employment discrimination case, including $600,000 in punitive damages reversed by a federal appeals court.

The plaintiff, Mindy Gilster, had sued her former employer Sioux City branch of Primebank and her former supervisor alleging that her supervisor spoke to her and touched her in an offense manner. Her employer, the bank reprimanded her supervisor this occurred in 2009 and 2010. However when the Plaintiff had filed with the Iowa Civil Rights Commission in 2011she was fired. What occurred and the firing was the basis of Ms. Gilster lawsuit.

The lawyer for the plaintiff,  Brooke Timmer, during closing arguments told jurors about a personal anecdote. She told the jury as a law student she had also been sexually harassed. She was a victim of  a professor’s sexual harassment.

In the case of Gilster v. Primebank the St. Louis-based 8th U.S. District Court of Appeal in its opinion stated “counsel’s recounting of her personal experience — facts that were not in evidence  —  was  aimed  at  enhancing  her  client’s  credibility  by  telling  the  jury  that counsel,  too,  had  endured  similar  misconduct.” The Court held these remarks were improper and unfair. The Court went on to say “Having  carefully  reviewed  the  entire  trial  record,  we  are  left  with  the  firm conviction that the timing and emotional nature of counsel’s improper and repeated personal  vouching  for  her  client,  using  direct  references  to  facts  not  in  evidence, combined  with  the  critical  importance  of  Gilster’s  credibility  to  issues  of  both  liability and damages, made the improper comments unfairly prejudicial and require that we remand for  a new trial.    This  is  not  an  action we take  lightly,  for  it  means  that  Gilster is  deprived  of  a favorable  jury  verdict,  and that  all  the witnesses  may  need  to  endure again what was  surely  a stressful,  unpleasant trial.    However, as  we said many years ago  in  an  opinion  that  has  been  frequently  cited  by  other  courts,  “when  a  lawyer departs  from  the  path  of  legitimate  argument,  [s]he  does  so  at  [her]  own  peril  and  that of[her] client.” Kelly, 84F.2dat 573.”

The Court went futher and stated:
“In  our  view,  counsel’s  rebuttal  argument  included  numerous  comments  that clearly  violated  the  following  provisions  in  Rule  32:3.4  of  the  Iowa  Rules  of  ProfessionalConduct, titled Fairness to OpposingPartyand Counsel:

A lawyer shall not . . . in trial, allude to any matter . . . that will not be supported  by  admissible  evidence,  assert  personal  knowledge  of  facts  in issue except  when testifying as  a witness,  or  state a personal  opinion as to  the  justness  of  a  cause,  the  credibility  of  a  witness,  [or]  the  culpability ofa civil litigant . . . .” ”

The Des Moines Register in an article written on April 7, 2014 by Grant Rodgers entitled “Iowa Lawyer’s Harassment Story Found Improper for Jurors” reported that since Gilster’s trial, Ms. Timmer has stopped using the anecdote in closing arguments.

Winning cases at trial, whether it be a wrongful termination claim, personal injury or medical malpractice is a challenge under the best of circumstances.  The same applies to law and motion. It is important to keep in mind what one argues, sometimes less is more . To “Snatch Defeat from the Jaws of Victory” is truly a trial attorney’s nightmare. Such an experience is not only a painful experience but as here can mean “rolling the dice all over again.” Not a great place to be.

Can I Sue? Can I Win?

Today I would like to talk about a frequent question that people ask of me regarding personal injury claims. The question that I often hear is “Mr. Katz, can I sue?”  An easy question to ask but not always an easy question to answer.

The first question that needs to be answered is what type of claim do you have?
An Automobile Accident? Car Accident? A Slip and Fall incident? Defective Product? Medical Malpractice / Medical Negligence? Kaiser Malpractice / Kaiser Negligence?

The First Question That Need to Be Answered is What Type of Claim Do You Have?
Do you have an automobile accident or car accident claim?
Do you have a slip and fall incident?
Do you have a claim regarding a defective product?
Do you have a medical malpractice / medical negligence claim?
Do you have a claim against Kaiser Permanente for malpractice / negligence?

Depending upon the type of claim you have, the facts of your incident greatly affect the strength or weakness of your claim. Some cases, depending upon facts, require the use of expert testimony to establish liability, this is overwhelmingly true in medical malpractice cases and defective product cases.

Do I Have a Strong Personal Injury Case?
In a personal injury action based upon negligence you must prove the elements of your claim to a judge or a jury. If any one element is missing, you cannot win.  By way of example, even if you can prove that the defendant was negligent but you did not suffer any injury  you will lose your case.

Basically the elements that you must prove at time of trial are:
Duty
Breach of the Duty
Causation both Legal and Proximate
Damages

These four elements are examined in greater detail below.
Duty
Did the defendant ( the other driver, property owner, doctor, nurse, healthcare provider, etc.)
owe a duty to you?  A duty of care arises in cases in which the law recognizes a relationship between the defendant and you, and because of the relationship, the defendant is obligated to act in a reasonably careful manner in regard to  plaintiff.

A driver on the road owes a duty of due care to other folks on the road or street including motorists and pedestrians for instance.  A property owes a duty of due care to people coming onto the property and must inspect and correct dangerous conditions that exist on the property and keep in the property in reasonably safe condition. A doctor or other health care provider owes a duty of due care to their patients.

Breach of the Duty
A defendant is will be held negligently responsible if the defendant breaches the duty of care owed to the plaintiff. A defendant who fails to act as a reasonablely prudent individual in the same or similar circumstances breaches their duty. Generally speaking whether a defendant breached a duty of care is a question of fact. In some cases depending upon the facts and circumstances, we need expert testimony to establish breach of a duty, and this is often true in medical malpractice claims.

Causation – Substantial Factor 
A injured party must show that the defendant’s acts or omissions were a substantial factor in causing injury. A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm.

Often an injured party believes that because a physical issue arose after an incident the defendant must have caused the problem, this is not necessarily so. Often we need expert testimony by treating doctors to establish a causal relationship between an incident and injury. The same applies for claimed economic losses. If you cannot prove that the defendant’s actions were a substantial factor in causing your claimed damages then you cannot win on those claims.

Damages
You must prove that the negligent act of the defendant caused you harm, usually as physical injury to a person or to property. It is not enough that the defendant was negligent, i.e.,  failed to exercise reasonable care. For instance, suppose a doctor negligently gives you the wrong prescription and you go to the pharmacy to have filled. The pharmacy catches the error and calls the doctor and they give the correct medication to you. Also assume that had the wrong prescription be given to you, and you would have died! In my opinion you have no case because the doctor’s failure to exercise reasonable care did not result in actual damages, now had you taken the wrong medication and you died, well . . .

Conclusion
Whether you can sue and win, depends ultimately on facts or your individual claim and the relative strengths or weakness of each element of your claim.

Should you wish to discuss your matter with me, give me a call at 626-796-6333

THE DANGERS OF BIG RIGS ON THE HIGHWAY

The 80,000-pound 18-wheeler truck barreling down the highway ON YOUR BUMPER.     We all know that feeling when we look into our rearview mirror and see tires and grill.  And maybe the sound of an air horn. It makes a nervous and jumpy and for a good reason.

Recent federal and state statistics show that these 18-wheeler trucks and other large trucks cause thousands of traffic accidents a year.  Size matters, with a truck’s size and weight, common sense tells us and experience shows that a crash between a big rig and a passenger automobile is likely to turn out badly for the passenger automobile.

In a collision between a big rig and a passenger automobile, the fatalities occur in the automobile 98% of the time. Annual truck crash fatalities are equivalent to a major airplane crash every other week of the year.

Some of the reasons are apparent: Trucks are larger, heavier, wider and longer than cars; a big rig needs more space to maneuver; and they need much more roadway to come to a stop. Many collisions involving trucks are caused; speeding, overly aggressive driving, failure to yield the right-of-way, poorly maintained trucks. Statistically, size also matters the larger the truck the greater the risk of a accident.  An 80,000-pound truck is more than twice as likely to be involved in a fatal accident as a 50,000-pound truck. Of course weather conditions such as rain or snow can makes matters worse especially when mixed with poor driving or poor maintenance can and do become a recipe for disaster.

Over the last five decades,  the industry-standard trailer having grown from 40 feet long in the  to 53 feet long today. Longer trucks mean larger blind spots, resulting in more traffic collisions. Road design is another problem, much of our interstates were created under the Eisenhower administration and are more than half century old. They were designed when trucks were shorter. Much of the interstates and local highways have ramps and merge lanes were not designed to with today’s big rigs in mind.  As a result, these trucks are using highways not designed with their bulk and size in mind, increasing the risk of a collision.

Larger, longer, and heavier trucks require more braking distance and time, hence a greater risk for causing a collision because the truck cannot stop timely. You probably did not know that  a truck weighing 100,000 pounds can take up to 25% longer to stop than one weighing 80,000 pounds. Think about that next time your are on the highway with a big rig behind you.

Another problem is a driver’s inexperience in operating a particular kind or size of truck.  Also driver fatigue is a serious problem and increasing problem with the deregulation of the trucking industry. As well, some rules governing how long a trucker may drive before he or she is required to stop for a rest have been relaxed.

Lawsuits involving truckers are often more difficult to prove than other kinds of collision suits, for several reasons. It may be difficult to find the driver/truck after the collision if it involved a sideswipe and they did not stop, perhaps not even realizing they hit another vehicle. Evidence as to the cause of a collision may be difficult to determine, i.e. driver error, road design, truck design, etc . . .

As well, given the nature of truck accidents often far more parties than the typical car crash are involved (the driver, the trucking company, multiple other drivers, the shipper) not to mention multiple insurance companies and adjusters.

Also many trucking companies are not only self insured but are also very skilled in defending themselves against negligence claims. They claims handlers for such companies can be very aggressive in denying claims because every dollar “comes out of their pocket.”

A person who has been involved in a collision caused by a negligent big rig driver, is legally entitled to be compensated for his or her injuries. The complexity of these cases means that you should consult an experienced personal injury attorney. Do not make the mistake of believing that trucking company or it’s insurance adjuster will look out for your interests.

Call me Richard M. Katz, at 626-796-6333 if you or a loved one has been involved in a big-rig collision. I offer free consultation and look forward to helping you.

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