The Injury Board Regional Blogs

Michelin Has Knowingly Been Selling Defective Tires, But Won’t Own Up

Mike Ferrara — Thu, 09 Feb 2012 20:52:30 GMT

After almost two years of a series of bad faith efforts to keep information about its defective, dangerous tires private, Michelin North America has been ordered by a federal judge in Atlanta to pay plaintiff’s attorney’s fees for deliberately holding up a case against the company.

In November 2009, in Bates v. Michelin North America, Michelin was sued for negligence and liability for a tire-related rollover crash that rendered the driver a quadriplegic, with permanent spinal and brain injuries. The crash happened when the left rear Uniroyal Laredo tire of the driver’s 2001 GMC Jimmy suffered a tread separation, causing a loss of control and a rollover. The driver was wearing his seatbelt at the time of the crash.

Although the plaintiff’s attorneys requested numerous documents and data relating to Michelin’s tire safety testing, the number of tires being returned for manufacturing defects, etc., Michelin deliberately held up the discovery process, first by claiming confidentiality issues were involved, and then by producing a series of meaningless documents that didn’t contain any of the requested data.

“In sum, Michelin’s bad faith conduct caused serious prejudice to the integrity of the legal process and to Plaintiffs’ orderly, effective development and proof of their case,” U.S. District Judge Amy Totenberg, of the Northern District of Georgia, wrote in her 61-page decision. “The pattern of abuse by Michelin is extremely troubling…“First, Michelin made multiple misrepresentations to the Court that it had produced documents as ordered by the Court when it in fact had not. Second, Michelin repeatedly refused to produce documents in direct violation of the Court’s January 3rd, June 3rd and June 24th Orders. Third, Michelin intentionally engaged in an extremely narrow, unjustified interpretation of the Court’s Orders in order to limit, or altogether avoid, producing relevant and useful documents in response to Plaintiffs’ discovery requests.”–SafetyResearch.net

Judge Totenberg also acknowledged that Michelin’s Laredo tire was “defective and unreasonably dangerous.” Although the court has yet to decide whether the Laredo tire caused the accident in question, it just couldn’t look worse for Michelin at this point.

Originally posted at InjuryBoard by Mike Ferrara

House GOP Bill Would Enable Anti-Abortion Civil Suits

Andrew Cochran — Thu, 09 Feb 2012 15:34:08 GMT

This week, the House Judiciary Committee approved H.R. 3541, the "Prenatal Nondiscrimination Act," which prohibits an abortion based on the sex, gender, color or race of the child, or the race of a parent of the child, as well as certain acts which facilitate the performance of a sex-selection or race-selection based abortion.

Articles from the pro- and anti-abortion commentators have focused on the criminal side of the bill and its potential impact on abortion rights. But I want to focus on another section of the bill, one which enables civil suits by the woman whose baby could be forcibly aborted, or by certain family members. That's a remarkable development for the Republicans serving on the Judiciary Committee, considering where they stand on other types of lawsuits.

Most of the House Republicans on that committee have been openly hostile to victims of medical malpractice, and last year approved H.R. 5, a bill designed to impose national limits on awards in medmal suits and impose wage limits on the attorneys who try such cases in court. So House Republican Judiciary Committee members are simultaneously opposing lawsuits filed in cases of personal injury or death, but creating a private right of action when race or sex is used as an excuse for abortion. Moreover, the committee Republicans backing H.R. 3541 have also backed H.R. 1433, titled "The Private Property Rights Protection Act," which enables civil suits by property owners against abusive eminent domain actions by local governments. There's no logical basis for the inconsistent treatment between medmal lawsuits on one hand, and certain abortion or property rights cases on the other.

I'm not against either of the two bills creating new private rights of action. As a pro-life conservative, I'm all for new legal tools to limit abortion on demand. But let's be consistent, just as the Founding Fathers were, when it comes to the civil justice system. They protected open courtrooms for all causes and cases, and so should Congress. Medical malpractice victims, victims of forced abortions, and property owners are equal under the law and have an equally unalienable right to bring their cases before a local jury.

Originally posted at InjuryBoard by Andrew Cochran

Uninsured/Underinsured Motorist Coverage- Is It Really Necessary?

Hugh Robert — Thu, 09 Feb 2012 13:01:51 GMT

A new study shows that one in four drivers in Oklahoma are on the road and carry no liability insurance (the fourth highest number of uninsured in the Country.) Over half the drivers in Oklahoma either have no insurance or the bare minimum coverage. While the legislature is passing laws that have stiff penalties for not carrying insurance, it is not going to help get your medical bills or lost wages.

If a driver carries the minimum coverage, $25,000, that could be eaten up in the first day or two of a hospital stay. As health care costs are rising, it is a big factor to consider when decided whether or not to carry Uninsured/Underinsured Motorist Coverage. Many friends of mine have responded to this by saying, well I already have health insurance so I am not worried about it. UM also can apply to lost wages and pay for deductibles that otherwise would have been out of your pocket.

A hit-and-run driver also counts as uninsured as it relates to bodily injury (UMBI). UM pays for your injuries when someone with no insurance causes an accident or when you're hit by a hit-and-run driver. UIM kicks in when someone else causes an accident but doesn't have enough insurance to cover all your costs.

I know for many years I used to reject the UM coverage when offered by my insurance carrier, now that I have seen the cases where someone is seriously injured and has no recovery, it made me think twice. I have since added UM coverage to my policy and was very surprised at how reasonable the premiums were.

Originally posted at InjuryBoard by Hugh Robert

News Anchor Bitten in Face by Dog Live on Air

David Mittleman — Thu, 09 Feb 2012 11:56:02 GMT

During what was supposed to be a heart warming segment on a local television newscast, a reporter was biten in the face by a dog rescued from an icy lake the day before by firefighters. The dog, an Argentine Mastiff, was sitting on the set of "Kyle's Kritters" on NBC's KUSA Denver with the host, Kyle Dyer, when she leaned her face down to kiss the pooch and was bitten live on air.

Naturally, the ordeal went viral on the Internet but the TV station has attempted to yank the segment before viewers could see it again. Dyer was apparently sent to the emergency room immediately after the attack and underwent emergency reconstructive surgery. The 3-year-old dog was taken to a Denver animal shelter and is under quarantine.

Michael Robinson, the dog's owner, was cited under Denver's "leash-law" for not having the dog under control at all times, for allowing a dog to bite and for not having the dog properly vaccinated. However, animal experts counter that Kyle was to blame for putting her face too close to an unfamiliar dog that felt threatened in a new environment. Robinson is due in court on April 4 but the dog is expected to be released after 10 days to his owner. The TV station is reviewing its policies in regards to animals in the studio.

Originally posted at InjuryBoard by David Mittleman

What Happens When The Defense Doesn't Play By The Rules?

Brett Emison — Thu, 09 Feb 2012 09:57:00 GMT

We live in a society with rules. These rules are intended to be followed. But what happens when someone intentionally breaks these rules? I remember as a child getting in trouble from time to time. The consequences were often much harsher for an intentional or repeat violation.

What happens when a defendant intentionally or repeatedly breaks one of the court's rules? Sometimes the defendant gets away with it. But a few recent examples demonstrate what should happen when a defendant intentionally breaks the rules in order to gain an unfair advantage over an injured plaintiff.

The first example - sourced from The Safety Record - comes out of a federal district court in Atlanta, Georgia. In that case, the injured plaintiffs alleged that a defective Michelin tire detreaded and caused their vehicle to roll over, leaving the passenger injured and the driver a paralyzed quadriplegic with brain injury. In proving up their case, the injured plaintiffs asked for certain documents from Michelin related to their claims - the documents sought included warranty adjustment data, design and production tolerances, and documents relating to the specific effects alleged. After a year of negotiations, Michelin had produced only a very small number of documents.

In January 2011, the court ordered Michelin to produce all of the documents requested by the injured plaintiffs. Michelin refused to produce all of the documents. In May 2011, the injured plaintiffs asked for sanctions against Michelin for failure to comply with the court's order. In June 2011, the court again ordered Michelin to produce all of the requested documents and added a warning: "Any further delays, manipulation of discovery… or basically failure to function in good faith and producing fully all information requested ordered… will result in a substantive sanction… comparable to what Plaintiffs have asked the next time it comes in front of [the Court]."

Despite this warning and a second chance to comply, Michelin again refused to abide by the court's rules. In describing Michelin's conduct, the Court said:

Despite being previously sanctioned for producing a meaningless list of adjustment conditions without the necessary interpretive documents, Michelin again produced a chart of adjustment data that could not even be interpreted by Michelin's own in-house expert.

***

First, Michelin made multiple misrepresentations to the Court that it had produced documents as ordered by the Court when in fact it had not. Second, Michelin repeatedly refused to produce documents in direct violation of the January 3rd, June 3rd and June 24th Orders. Third, Michelin intentionally engaged in an extremely narrow, unjustified interpretation of the Court's Orders in order to limit, or altogether avoid, producing relevant and useful documents in response to Plaintiffs' discovery requests.

***

In sum, Michelin's bad faith conduct caused serious prejudice to the integrity of the legal process and to Plaintiffs' orderly, effective development and proof of their case. The pattern of abuse by Michelin is extremely troubling.

Because Michelin intentionally and repeatedly disregarded the Court's rules for nearly 2 years, the court sanctioned Michelin by awarding attorneys fees and declaring that the Michelin tire was "defective and unreasonably dangerous".

In another case, a St. Louis defense law firm was similarly sanctioned for violating discovery rules. After all of the trial preparations had occurred, after months of preparation, after numerous depositions, and just days before trial was set to begin, the defense lawyers at the last minute finally turned over an entire stash of critical documents. Instead of playing by the rules, the defendant and its lawyers decided the rules didn't apply to them.

From the St. Louis Post-Dispatch:

A stash of documents was turned over at the last minute, just as the case was set for trial earlier this week.

***

The judge wrote in his order, "The discovery violations committed by defense counsel were not mere delays or insignificant mistakes that occurred inadvertently but rather deliberate or intentional, systematic, dishonest conduct. Their violations undermine entire system. Their actions showed a disregard of the court's authority because they believe that they alone decide discovery matters."

[The judge] said that in 17 years on the bench, he never imposed such a sanction, which is called "the striking of pleadings." He noted that it is reserved for "only the most egregious and systematic, deliberate or intentional discovery violations."

In a third example, a Florida court set aside a jury verdict in favor of Ford Motor Company; finding that Ford defrauded the court and the National Highway Traffic Safety Administration by claiming that driver error was the only known cause of unintended acceleration and find that Ford concealed years of testing that showed electromagnetic interference was a frequent root cause of unintended acceleration in Ford vehicles. The judge also found that Ford's defense lawyers lied and withheld the results of expert witness tests conducted to show what caused the tire marks left by the subject vehicle during the sudden acceleration event.

In sanctioning Ford for violating fundamental rules of honesty, the Florida judge ordered a new trial in which the jury would only consider compensatory and punitive damages.

Rules are important. Rules have meaning. When rules are repeatedly or intentionally broken, there are consequences. Litigation is meant to take place within the rules and on an even playing field. When one party ignores or abuses those rules, justice cannot be served. I applaud these courts for holding defendants accountable when they or their defense lawyers refuse to play by the rules.

[More on Frivolous Defenses]

Michelin Rapped for "Bad Faith Conduct" [The Safety Record]
Faces of Lawsuit Abuse: Sgt Jon Brough
Shield maker pays disfigured Belleville officer after evidence fight [Nicholas J.C. Pistor at St. Louis Post-Dispatch]
St. Louis Defense Firm's Client Sanctioned for Discovery Abuse [Todd Hendrickson at St. Louis Injury Law Blog]
Judge Finds Ford Fraudulently Concealed Electronic Causes of Unintended Acceleration [The Safety Record]
How Ford Concealed Evidence of Electronically-Caused UA and What it Means Today [The Safety Record]

Follow @BrettEmison on Twitter.

Originally posted at InjuryBoard by Brett Emison

What Constitutes Medical Malpractice?

Council Wooten — Thu, 09 Feb 2012 09:31:00 GMT

Medical malpractice is defined as a health care worker or provider failing to render proper care with accepted medical techniques or principles. This is a vague definition and is open to interpretation. You are entitled to receive adequate and safe care from medical professionals. Obviously, mistakes happen and some procedures are difficult and dangerous by nature, but when physicians don’t use reasonable caution, that’s when medical malpractice occurs.

If a patient is injured or killed due to negligence, the victim or the victim’s family is entitled to damages. Medical malpractice can often be difficult to prove, and the majority of the time it goes unnoticed and unreported by the patients.

If you think you have a medical malpractice case, you should not hesitate to contact an experienced attorney. There is a two-year statute of limitations from the time the injury occurs for when you can file a claim in Florida. The discovery process in these cases can be extremely long and complicated, and the longer you wait, the more difficult it becomes.

Do not take the word of physicians or a hospital when it comes to questions about medical malpractice. Contact an attorney who is looking out for your rights.

Wooten, Kimbrough & Normand, P.A.—Orlando personal injury attorneys.

Originally posted at InjuryBoard by Council Wooten

Underinsured and Uninsured Motorist Coverage is Very Important

Mike Bryant — Thu, 09 Feb 2012 09:00:00 GMT

In the past, the Insurance Research Council found that one in six drivers in the country are without insurance. With the economic issues that have struck the country, it is expected that those numbers have grown. Based on current unemployment rate projections, the percentage of uninsured motorists has risen from 13.8 in 2007 to 16.1 in 2010.

In 2007, the five states with the highest uninsured driver estimates were New Mexico (29 percent), Mississippi (28 percent), Alabama (26 percent), Oklahoma (24 percent), and Florida (23 percent). The five states with the lowest uninsured driver estimates were Massachusetts (1 percent), Maine (4 percent), North Dakota (5 percent), New York (5 percent), and Vermont (6 percent).

What do these numbers mean for you and your family? It means that if any of you are in an accident, there is a higher possibility that it will be with a driver who is uninsured. This would mean no coverage for the injuries except for the insurance that you purchased. It is imperative that you review what your UM and UIM coverage is. Keep in mind that if you have more than one car on your policy that you can stack your no fault coverages.

It is too late after an accident to find out that you didn't protect yourself. Most coverage increases aren't that much compared to the extra protection they provide.

Originally posted at InjuryBoard by Mike Bryant

Pennsylvania State House Ready To Vote On Unconstitutional Corporate Venue Legislation

Scott Cooper — Thu, 09 Feb 2012 07:13:39 GMT

How often does your legislature vote on a piece of legislation that it knows will be unconstitutional? In Pennsylvania, the state house has done that in the past and is poised ready to do this again.

That is why if you live in the Commonwelath of Pennsylvania you need to Contact Your Pennsylvania State House Representative Immediately and ask He or She to “Vote NO on House Bill 1976– The Corporation Venue Protection Act”!

The Pennsylvania state house may soon vote on what, if passed, will be known as the the Corporation Venue Protection Act of 2012, HB 1976, which gives corporations special rights and protections in all civil cases. The bill’s supporters spin there argument and call it a “venue shopping” bill, but the bill is really designed to protect corporations that are responsbile for injuring or killing people through reckless, intentional or reckless conduct because it applies only to venue in “actions against corporations and similar entities.”

If passed, this bill will usurp the Supreme Court’s exclusive rulemaking power on venue and all but abolish the ‘minimum contacts’ jurisdiction test. Emboldened by their win last year on joint and several liability, the Pennsylvania Chamber of Business & Industry admits it wants to “continue the momentum.” Despite using other organizations to help lobby this legislation, the Chamber is really the force behind actively pushing HB 1976.

For the sake of the preserving your rights and the rights of a loved one who may be injured or killed by such conduct, it is time to push back now.

Contact your state representative to vote “no” on the HB 1976. HB 1976 is unconstitutional, departs radically from longstanding legal doctrine, and unfairly singles out corporations for protection against accountability for harms they cause to Pennsylvania families.

If this legislation becomes law it will have a dramatic impact on those injured or killed as a result of corporate misconduct in a car wreck or accident, impacted by a defective product, or any other personal injury claim (excluding medical malpractice) in not only Harrisburg, Central Pennsylvania but the entire Commonwealth.

Scott B. Cooper
Schmidt Kramer PC
209 State Street
Harrisburg, PA 17101
(717) 232-6300 – Telephone
(717) 232-6467 – Facsimile
scooper@schmidtkramer.com
Facebook.com/SchmidtKramer
Twitter.com/TalkToALawyer

Originally posted at InjuryBoard by Scott Cooper

No Virginia Ticket for Bambi

Doug Landau — Thu, 09 Feb 2012 06:09:00 GMT

There are lawyers who have studied hard, taken the bar exam, passed the background checks, then paid dues and gone to Continuing Legal Education ("CLE") classes to maintain their licensure. And then there are some that have not.
Even though she had never been licensed by the Virginia State Bar, a Williamsburg patent lawyer has been suspended from performing any legal work in the state for two years. A three-judge circuit court panel sitting in the Circuit Court for James County and the City of Williamsburg approved a two-year suspension of Bambi Faivre Walters for unauthorized practice of law and misuse of client money according to the article in this week's Virginia Lawyers Weekly

The North Carolina bar reprimanded Walters in 2010 based on the same allegations of practicing law in Virginia without a license. It is important to verify that your lawyer is in fact a member in good standing with the state bar where your case may be brought. You can call the Virginia State Bar ("VSB") at 804-775-0500 and verify membership. You should also verify that a lawyer has insurance coverage and has handled cases like yours successfully. The VSB has an easy to use site for this as well. Whoever you choose to represent you in your injury, Social Security Disability, workers comp or other claims, please make sure that they are members in good standing of the bar, that they are insured and experienced.

Originally posted at InjuryBoard by Doug Landau

Pelvic Mesh Implant Lawsuits Move Forward in Courts

Joe Saunders — Wed, 08 Feb 2012 21:28:37 GMT

Products liability lawsuits against three different manufacturers of transvaginal surgical mesh devices were assigned to a single federal judge in a multidistrict litigation proceeding this week. The February 7, 2012 Order by the Panel on Multidistrict Litigation assigned lawsuits from all over the United States to the federal Court in Charleston West Virginia. A prior multidistrict litigation proceeding involving the C.R. Bard Avaulta vaginal surgical mesh has been pending in the Charleston Court for several years.

The panel of judges making this assignment reasoned that the reported defects in all of these mesh products were similar and that Judge Godwin in Charleston who has been handling the C.R. Bard Avaulta pelvic mesh litigation could use his experience to expedite the litigation involving the other manufacturers.

A multidistrict litigation is not a class action. Each woman will continue to have her own individual case and if the case does not get settled the case will be remanded to her home town for an individual trial. Each woman will have the right to make her own individual decision on whether to settle or take her case to trial.

Multidistrict litigation is frequently used in mass disasters such as an aircraft crash or a major hotel fire or collapse. It is expected that there will be thousands of women who will eventually file lawsuits. The widespread marketing of transvaginal surgical mesh to women in the United States is, in my opinion, a mass health disaster.

The lawsuits allege that the manufacturers of these products recklessly and negligently marketed these mesh products for surgical treatment of pelvic organ prolapse and stress urinary incontinence and put the companies’ interest in making profits ahead of the safety of women. Pelvic organ prolapse (POP) and stress urinary incontinence (SUI) can be treated surgically in most cases using a women’s native tissue without implantation of surgical mesh. The risks of complications are much lower if the mesh is not used.

In many cases with mesh implantation the mesh causes inflammation and infection. The implanted mesh also can shrink and cause chronic pain. Frequently, the mesh will start to extrude through the vaginal wall causing bleeding and pain. Many women have had multiple surgeries to try to trim the extruding mesh or cut deeper to try to remove parts of the mesh. It is practically impossible to remove the mesh because it is implanted deeply through the pelvis with strips or arms extending deep into the pelvis and towards the abdomen. Consequently, there may be no cure for some of these women. I have one client that has had 8 surgeries and is still in pain every day.

It appears that the manufacturers mislead the womens’ doctors by promoting the mesh kits and being safe and effective for treating POP and SUI. The medical studies that the manufacturers used to promote these products describe the anatomical benefits of using the mesh to restore the vaginal vault but the studies did not look at the outcomes on the women who had the implants in the months and years after implant. The U.S. Food and Drug Administration has recently become concerned about the high rate of adverse outcomes after these implants and is conducting data collection to decide whether to order a recall to prevent future implant surgeries on such a broad scale. Many medical specialists believe that is a few limited cases a mesh implant might be warranted if the woman is fully and properly advised of the risks of bad side effects but that the wholesale promotion of these mesh products to all women with POP or SUI is dangerous and wrong.

These mesh kits probably cost less than $100 to manufacture but they are sold to hospitals for over $2,000. This high profit margin provides an inventive for the manufacturers to sell as many of these kits as they can. It will be interesting to see what juries think of this motive to oversell these devices. Many of the lawsuits ask for punitive damages against the manufacturers on this basis.

The three new manufacturers added to the multidistrict proceeding procedure are American Medical Systems, Inc., (AMS); Boston Scientific Corp.; and Ethicon, Inc. which is a Johnson & Johnson company. Each of these manufacturers makes a number of different transvaginal surgical mesh products in different sizes and designs but it appears that they all have unacceptably high rate of side effects and complications.

The coordination of these cases for pretrial management will help to define the scope of this national health disaster and provide a forum for the women and their lawyers to find out the truth about what these companies knew and why they chose to expose women to these horrible health complications.

Originally posted at InjuryBoard by Joe Saunders