Recent Posts in Personal Injury Law Category

Tuesday night, a plane was trying to land on a short runway in a rainstorm at the Sao Paulo Congonhas airport, when it ran into an airline building and a gas station and burst into flames. The TAM Airlines Airbus-320, which had come from Porto Alegre in Southern Brazil, had 186 people on the plane, and it is unknown how many people were in the building that was hit.

Witnesses said they saw the plane land and skid across the runway. Some stated it was going so fast they thought the plane was trying to take off. Authorities have announced that there is no possibility that anyone on the plane survived because the fire reached temperatures over 1,800 degrees Fahrenheit.

The newly resurfaced runway had just been reopened after weeks of repairs. Investigators are going to look into the possibility that aviation authorities reopened the runway before all necessary repairs were made. The runway has been repeatedly criticized for being to short.

Pilots call it the "aircraft carrier" - it's so short and surrounded by heavily populated neighborhoods that they're told to take off again and fly around if they overshoot the first 1,000 feet of runway.

In February, a court in Brazil banned large aircrafts from landing at the Congonhas airport for safety concerns. There was much opposition to the decision, and an appeals court eventually overturned the decision.

According to Luiz Inacio Lula da Silve, president of Brazil, this accident has been Brazil's most deadly air disaster ever. Three days of national mourning have been announced in Brazil. The U.S National Transportation Safety Board is helping with with rescue and salvage efforts.

http://www.cnn.com/2007/WORLD/americas/07/18/brazil.plane.crash/index.html?eref=rss_topstories

Last week my wife and I mountain biked up Angora Lakes Road in South Lake Tahoe, California. Straight up a long hill, beautiful views of Fallen Leaf Lake and Lake Tahoe with two idyllic lakes at the very top and Desolation Wilderness even further above.

This week the entire area is evacuated by a fire that has burned more than 2000 acres and South Lake is facing what some are saying is the worst crisis in its history. More than 200 homes burned, 500 more threatened; and a friend at the lake just told me that the high school is now in serious danger of burning as well..

All very sad and sure to call into sharp question the Tahoe Regional Planning Agency's forestation rules.

I encourage everyone to consider donations to the residents of South Lake who lost their homes.

The following quotes come directly from the Las Vegas Review Journal on May 23, 2007:

Las Vegas personal injury attorney Noel Gage surrendered to the federal government Tuesday after he was indicted on charges related to a wide-ranging scheme that involved inflated medical costs and jacked-up settlements.

Gage is the second person indicted in connection with what authorities allege was a multimillion-dollar ruse. Gage faces 18 felony charges including conspiracy, mail fraud, money laundering, aiding and abetting and obstruction of justice.

In March, a federal grand jury in Las Vegas indicted Indiana resident Howard Awand. Awand "purported to be" a medical consultant, federal prosecutors said.

Authorities alleged that Awand recruited a network of doctors who agreed to refer patients to him and that he would refer the patients to personal injury attorneys, including Gage. Gage would provide Awand access to clients' confidential medical and legal information, authorities said.

Awand and Gage would steer the clients to doctors who would provide their services on a medical lien basis, all the while concealing that Awand had agreed to buy the lien at a steep discount, authorities allege. The clients would be required to pay the full value of the liens, and Awand then would pay kickbacks from the profits to those involved in the scheme, according to the indictment.

The health providers received kickbacks for providing false testimony for the personal injury claims, and the lawyers promised not to sue the participating doctors for medical malpractice, authorities alleged.

Gage was a recipient of the kickbacks, according to the indictment, but it does not specify who paid Gage or how much he received.

Acting U.S. Attorney Steve Myhre indicated Tuesday afternoon that more indictments are to come in the case, but he would not say how many more people he expects will be charged.

"This is a continuing investigation; it's wide-ranging and expansive," Myhre said after Gage's initial appearance in court. "It will continue into the foreseeable future."

The indictment handed up against Gage shed light on what authorities alleged was a corrupt relationship that Awand established with Gage and other doctors and lawyers. Gage paid Awand and the doctors for the referrals, according to the indictment.

Awand and Gage persuaded the clients to seek medical treatment from health providers who agreed to treat the patients on a medical lien payment basis, meaning patients could pay their bills after their injury claims were settled. "The medical lien allowed healthcare providers to charge clients for services and procedures at grossly inflated prices," the indictment said.

The health care providers, according to court documents, had a secret agreement to sell the medical liens to Awand at a "steep discount."

In their efforts to obtain settlements or judgments, Awand and Gage filed lawsuits against individuals involved in the claim or insurance carriers, according to the indictment. Health care providers involved in the scheme offered testimony that included false or misleading statements, according to the indictment.

After claims were settled, the inflated medical lien costs were deducted from their settlements, and the participants in the scheme then got kickbacks out of the windfall, authorities alleged.

The indictment outlined a case in which a patient became "profoundly and permanently disabled" after treatment from health care providers not involved in the scheme. A physician working with Awand learned of the case and had the patient referred to Awand.

In September 2001, Awand referred the case to Gage. At the encouragement of Awand and Gage, the client signed medical liens for treatment received through June 2003.

"Gage and Awand knowingly misled Client 1 to believe that Client 1 was personally liable for the full face value of the lien when they both well knew that Awand would purchase the lien at a discount," the indictment said.

Gage and Awand filed lawsuits against "individuals and insurance agencies" on behalf of the client, according to the indictment.

During a two-year period ending in December 2003, Gage disbursed more than $7 million in proceeds from the settlement of the client's lawsuits. Gage paid Awand $1 million from the settlement, explaining to his client that the payment was for contingency fees, the indictment said.

On top of that, Awand got $347,754 from the proceeds, and Gage told his client that payment was to settle liens with Valley Hospital Medical Center, the indictment said. Awand had bought those liens for the discounted price of $130,000, the indictment said.

Gage paid Awand an additional $12,000, explaining to the client the money was for another medical lien, the indictment said. But that lien, issued by a doctor who was a participant in the scheme, was actually for $5,000, according to the indictment.

Awand and Gage also withdrew another $430,000 from the settlement and explained that payment was needed to pay off additional contingency fees, the indictment said. The money instead went to the physicians who participated in the elaborate plan, the indictment said.

In the indictment, federal prosecutors outline a second client's case that involved a similar pattern of behavior by Awand and Gage.

The obstruction of justice charge against Gage stems from his grand jury testimony. When the grand jury requested to see certain documents from Gage's office, the attorney failed to produce checks written to Awand or his medical consulting companies, the indictment said.

A second witness tampering charge was added to Awand's case on Tuesday. He is expected to appear in federal court later this week.

After Gage's court appearance Tuesday, he declined to comment on the case. He indicated that he is confident he will be cleared of the charges.

"Are you going to give me this kind of news coverage when I'm adjudicated?" he asked reporters outside the courthouse.

Gage was admitted to the Nevada State Bar in 1998. He earned his law degree from the University of Michigan in 1962, according to the Web site lawyers.com. The site said Gage, who is a partner in the firm Gage & Gage, specializes in products liability, personal injury, employment discrimination, medical malpractice and general civil practice.

Accidents, like the challenges of life, aren't always straightforward, and defense attorneys are adept at making the most of complexity.

So what happens when you're in an accident and you may have some fault, too?

Nevada law is generally clear on this issue. N.R.S. 41.141 provides, in part, as follows:

41.141. When comparative negligence not bar to recovery; jury instructions; liability of multiple defendants

1. In any action to recover damages for death or injury to persons or for injury to property in which comparative negligence is asserted as a defense, the comparative negligence of the plaintiff or his decedent does not bar a recovery if that negligence was not greater than the negligence or gross negligence of the parties to the action against whom recovery is sought.

2. In those cases, the judge shall instruct the jury that:

(a) The plaintiff may not recover if his comparative negligence or that of his decedent is greater than the negligence of the defendant or the combined negligence of multiple defendants.

(b) If the jury determines the plaintiff is entitled to recover, it shall return:

(1) By general verdict the total amount of damages the plaintiff would be entitled to recover without regard to his comparative negligence; and
(2) A special verdict indicating the percentage of negligence attributable to each party remaining in the action.

Basically, this means that if your case ends up at an arbitration or a trial, you will be barred from recovery only if you are determined to be more than 50% at fault.

If you are determined to be 50% or less at fault, then whatever award you receive will be reduced by your percentage of fault.

The full text of this statute and others can be found at http://www.leg.state.nv.us/law1.cfm

The Court recently affirmed its longstanding views in this regard in set of holdings on this issue in Wood v. Safeway, decided on October 20, 2005.

There, Jane Doe, a mentally handicapped woman, was working for Safeway Stores when she was sexually assaulted by Emilio Ronquillo-Nino, who was employed by a company that provided janitorial services at the Safeway where Doe worked. Doe, through her guardian ad litem, filed a complaint against Safeway and Ronquillo-Nino's employer, Action Cleaning, alleging five causes of action as a result of the sexual assault.

The lower court granted summary judgment in favor of Safeway, determining that it was immune from suit because of coverage provided by the Nevada Industrial Insurance Act (NIIA). The district court also granted summary judgment in favor of Action Cleaning pursuant to NRS 41.745 because it was not liable for intentional torts committed by its employee and because Ronquillo-Nino’s intervening criminal acts were a superseding cause that relieved Action Cleaning of responsibility.

Nevada law has long barred employees from suing employers for injuries that arise in the course of employment. In Wood, the Court recognized that Doe's employment with Safeway brought her into contact with the assailant. While the nature of her work required her to interact with employees and the public, her specific job duties included cleaning various areas of the store and collecting shopping carts from the parking lot. Two of the sexual assaults occurred while she was collecting carts from a lot that was behind or next to the store, and the other in a cleaning supply room that was presumably in an area off limits to the public. As a result, the Court concluded that Doe's employment contributed to and increased the risk of assault beyond that of the general public. Her only contact with Ronquillo-Nino was through her employment. Because he worked as a janitor there, he was aware of the store layout and which areas of the store provided vulnerable locations. The sexual assault, reasoned the Court, was not imported into the workplace or otherwise the result of motivations peculiar to the assailant and the victim that are unrelated to the employment. Therefore, Doe's injury falls within the coverage of the NIIA, and her claims are barred by NRS 616A.020.

The Court also examined the lower court's grant of summary judgment in favor of Action Cleaning based on the dual grounds that (a) under NRS 41.745 an employer is not liable for harm caused by the intentional torts of an employee, and (b) Ronquillo-Nino's intervening criminal act was a superseding cause that relieved Action Cleaning of liability. Doe argued against both conclusions on the basis that Ronquillo-Nino's acts were foreseeable given that Action Cleaning's workforce is highly transient, untrained, largely unsupervised, and "comprised almost entirely of" illegal aliens.

The Court disagreed. First, said the Court, Ronquillo-Nino had no prior criminal history in the United States or Mexico. Action Cleaning requires applicants to show proof of identification, checks employment references, and completes the proper Immigration and Naturalization forms for every employee. Action Cleaning's district manager further stated that he had not received complaints of sexual harassment regarding Ronquillo-Nino or any other employee in the past ten years. Under the circumstances of this case, it was therefore not reasonably foreseeable that Ronquillo-Nino would sexually assault a Safeway employee. Moreover, as noted, the assault resulted from Ronquillo-Nino's independent acts and was not within the course and scope of his employment. Consequently, under NRS 41.745, the Court found that Action Cleaning was not liable for the intentional conduct of its employee, Ronquillo-Nino and the Court similarly concluded that Ronquillo-Nino's actions were an intervening superseding act that relieves Action Cleaning of liability in this case.

Nevada is a state that protects employers and The Nevada Supreme Court's conclusion in the Wood case continues Nevada's tradition of protecting employers from the consequences of intentional harm done by their employees.

There's a fascinating and disturbing constitutional amendment on South Dakota's November ballot.

Here's an editorial dated October 17, 2006 from the Press & Dakotan, which can be found at http://www.yankton.net/stories/101706/opEd_796101706.shtml:

South Dakota's proposed Constitutional Amendment E -- the so-called J.A.I.L. amendment -- on the November ballot is one of the more distressing measures to ever go before the state's voters. At best, it's unfortunate and possibly unconstitutional at the federal level; at worst, it's an invitation to chaos not only in the state's judicial system but for elected officials at various levels.

Proponents of the measure describe Amendment E as a tool by which ordinary citizens can file complaints and possibly collect restitution and assess damages (retroactively, to boot) on judges who have abused their powers.

However, many -- including the state's attorney general -- have interpreted the proposed measure in much broader and more disturbing terms. It could expose not only judges but also juries, prosecutors (and, potentially, witnesses with judicial immunity), city commissioners, county commissioners, school board members and other officials, elected or voluntary, who make judicial decisions to punishment doled out by special grand juries organized to hear complaints of wrongdoing.

One must bear in mind that there are reasons the aforementioned group of decision-makers are granted these immunities. Our system allows this so that, as the ballot explanation for this measure states, they are free to "do their job without fear of threat or reprisal from either side." This is essential to ensuring as much equity and impartiality in our system as possible, as well as maintaining a viable separation of power within our government. Otherwise, a judge or jury, for instance, may find their decisions influenced if they fear retribution from one of the parties in a case.

In fact, there are already avenues in place for certain recourses. Judicial and court decisions can be appealed, and judges can be defeated in elections or held up to scrutiny by the Judicial Qualifications Commission. In a broader scope, commissioners can be voted out or recalled. Members of zoning boards can have their decisions appealed. So, there are remedies and options already available that manage to keep intact the "immunity" these positions need to perform.

What we see happening should Amendment E be enacted is a tidal wave of frivolous complaints, filed by disgruntled individuals, filling the dockets of these special grand juries. In some cases, what would the "complainants" have to lose? This would have devastating impact on the state's judicial system and on governing boards. It would also have a chilling effect on potential candidates for judgeships and for boards: Who would be willing to expose themselves to such intimidation and punishment? That kind of atmosphere would indeed be a recipe for chaos.

One should also ask, if Amendment E is enacted and special grand juries are set up, would these special grand juries be subject to this same kind of review? And would the special grand jury that sits in judgment of the first grand jury also be exposed, etc., etc.? And if not, why not?

On a personal note, we should also mention that our fleeting exposure to the Amendment E proponents, several of whom hail from out-of-state and thus would not be affected by the mess they may generate here, has been intriguing, to say the least. Rightly or wrongly, they come off as hotheaded, paranoid, quick to pass judgment and the kind of people who probably wouldn't hesitate to file lawsuits and take other actions against anyone they dislike or define as "wrongdoers" according to their own definitions. In short, they make the case in illustrating why the immunities they criticize were set up in the first place.

Many lawyers, judges and lawmakers have come out vigorously against this measure (proponents might claim it proves their point) for various reasons. In fact, the state Legislature adopted a rare resolution condemning it. So, let us try the angle of pleading: For goodness sake, run away from Amendment E -- or better yet, make a stand and vote "no" on Nov. 7 to plant this thing in the grave of oblivion it richly deserves.

In the closing days of the 2005 legislative year, Senate Majority Leader Bill Frist and the White House fail to obtain the needed support for a proposal to shield flu vaccine manufacturers from injury claims related to side effects of their products. Eschewing the democratic process, Frist rolls the desired language into a Defense Appropriations Bill without the knowledge of the House-Senate Conference Committee that was charged with reconciling the House and Senate versions of the bill. It seems merely coincidental that Frist has received $271,000 in campaign contributions from the pharmaceutical industry since 1989, or that the industry contributed nearly $800,000 to the Bush campaigns in 2000 and 2004.

In January, the FDA -- another organization touting its unceasing concern for the health of ordinary Americans -- pre-empts state prescription drug product liability laws by updating the agency's rules on drug labels. State Attorneys General are outraged and demand to see the new policy in order to comment before it takes effect. The FDA refuses. In a letter to the FDA, Illinois senator and president of the National Conference of State Legislatures Steve Rauschenberger writes that "This attempt to insert pre-emption language is a thinly veiled attempt on the part of the FDA to confer upon itself authority it does not have by statute and does not have by way of judicial ruling."

Fast-forward to March 2006. The "National Uniformity for Food Act" passes through the House of Representatives and begins winding its way through the Senate. Though touted by the Grocery Manufacturers Association as "a single set of food safety and warning standards that will help consumers to make educated choices," in reality the act is an attempt to trump state regulations by putting everything under the control of the FDA.

The FDA's protection of its "clients" might make sense if states did a poor job protecting consumers, but clearly this isn't the case. For example, California laws against lead content in calcium supplements fostered the removal of lead from most products long before the issue registered on the FDA's radar. The increased power of the FDA might even make sense if drug manufacturers did a competent job testing their products, but this isn't the case either. According to a recent study by Knight-Ridder, there was one adverse drug reaction per every 16,300 prescriptions in 1992. By 2003, the ratio had risen to one in 9,000.

Sadly, these and other quasi-legal sweetheart deals between government and industry occur with numbing frequency, and it seems unlikely there will be any public outrage on this issue. But at the very least, consumers should be suspicious the next time they see an ad from a drug company proclaiming how much it cares.

The latest nationwide figures were released by the U.S. Conference of Catholic Bishops, Office of Child and Youth Protection. The figures came from its third annual audit of dioceses across the county to determine how they have complied with the Charter for the Protection of Children and Young People. The charter was developed in 2002 after allegations of sexual abuse of children by priests, deacons and bishops soared. It mandated that all dioceses create safe environments for children and established guidelines for dealing with abuse claims.

The national total for new allegations was down from the 1,092 claims reported in 2004, the study found. Nine of the 783 new claims involved abuse against children that occurred in 2005, the report said, while the remaining 774 new allegations were for abuse that occurred or began between 1960 and 1979.

This will be the first in a series of thoughts about the role that doctors play in injury cases.

Doctors can be treating doctors, or expert witnesses, or either but not both, or both. This is a subject of some complexity that I will delve into more in the future; for now, though, let's talk about treating doctors.

I was recently in a deposition in a case in which my partially disabled client was on a motorized scooter when she was hit in a crosswalk by a young man driving a truck. She required extensive medical treatment, saw numerous orthopedic doctors and surgeons, and had to undergo knee replacement.

One of those surgeons, a joint replacement specialist, was the subject of the deposition. Under questioning by the 
defense, he stated that he could not, to a reasonable degree of medical certainty (the phrase that many lawyers

use to describe the standard for burden of proof) relate my client's need for knee replacement surgery to the fact that she had been hit by a truck in a crosswalk, had been thrown a substantial distance, and had extensive pain complaints relating to her knee after the accident. In fact, and worse, he testified, to a reasonable degree of medical certainty, that her knee replacement was not due to the accident.

My client's medical chart reflected some prior knee complaints, but not nearly the same type and number of complaints as she had after the accident. After the defense was finished, I asked the doctor whether subjective complaints of pain were a potential factor in determining whether knee replacement was necessary. He stated that this was a major factor in this type of determination. I then asked him to tell me the frequency and character of my client's knee complaints prior to the accident as opposed to the frequency and character of my client's knee complaints after the accident. He then stated that he had not had time to review the entire chart, despite the fact that I had offered to pay him to do so.

At the end of the deposition we were left with a witness who had "neutralized" the value of his testimony for either side by virtue of his lack of preparation. My client, who truly had many more serious pain complaints after the accident than she had before it, lost a potentially valuable witness.

The moral of this story, to the extent that there is one, is that treating doctors are often dangerous witnesses for their patients. I tell my clients that treating doctors may "trump" hired experts at trial since juries tend to believe a doctor who examined and cared for a patient as opposed to a doctor who is paid for the sole purpose of testimony.

Many treating doctors, however, are alarmingly unaware of their own patient's medical history and find deposition testimony tiresome and annoying, even though they are invariably paid $500.00 to $1000.00 an hour by one attorney or another.

The role of treating doctors in the outcome of injury cases cannot be overstressed, and I will discuss other aspects of this important subject in the future.

Case Size

How big is the case? Litigation can be very expensive and you, the injured party, ultimately foot the bill for costs. You should understand what your costs are at the time of the settlement offer and what your costs may be if litigation is pursued. Along the same lines, attorney's fees often go up as a case nears trial. What will your attorney's fees be if you continue? Determine costs and fees now and project costs and fees later. This will tell

you what you will need to gain by pursuing litigation. Injury cases are about economics; your goal should be maximizing your net recovery.

More Now Or More Later?

What likelihood is there that you will gain more if you wait until later to settle or go to trial? This is a question that no one can answer with certainty. This is the nature of our system and the uncertainty of the outcome of your case is based upon the fact that there are so many variables that go into any contested hearing.

Other Factors

Here are some other factors to consider in assessing whether to litigate or to settle:

-Stress. Will litigating your case through contested hearing create a great deal of stress for you? How much is it worth to forego the stress, preserve your health and resolve your case with certainty?

-Comparative negligence. Is there a possibility that you contributed in some manner to the situation which led to your injuries? In Nevada, you are barred from recovery if your own negligence exceeds the adverse party's negligence. Otherwise, your award may be reduced by that percentage of negligence attributable to you.

-Perception of reality. In our society, appearances and presentation count. The way a judge or jury perceives the litigants matters and could make a difference.

-Time. It takes time to get an arbitration or a trial done and any party can then appeal. The Nevada Supreme Court can take years to hear a case. How long are you willing to wait for your money?

-Principle. If you are determined to pursue your injury case on principle alone, you may be pursuing your case for the wrong reason. Civil injury cases can help to affect societal change, but more often than not injury victims are better served by focusing on the economics of a case and maximizing net recovery.

For more on comparative negligence, see my article titled What If You're At Fault Too? http://reno.injuryboard.com/automobile-accidents/what-if-youre-at-fault-too.aspx?googleid=200412

The answer to this question has a ring of Zen to it. How much is your case worth? Your case is worth what you can get: that's how much it's worth.

So what can you get?

The answer depends on a variety of factors.

A good place to start out is a general understanding of the legal concept of damages. Simply put, there are different types of damages that correspond to a particular claim. For instance, punitive damages (or damages to punish rather than to compensate) are generally available only when a claim that entails intentional or malicious conduct is proved. Therefore, punitive damages are not available in negligence cases since negligence cases do not involve intentional conduct. Punitive damages are, however, available in fraud cases since fraud is a claim that necessitates a showing of intent.

So the value of a case depends on the type of damages available upon the proof of your claims and the actual amount of damages (for instance, the amount of your past and future medical bills). The difficulty of proving certain claims and the chance that the defense may be able to prevail with certain defenses, such as comparative negligence, must be factored into any analysis of how much a case is worth. An assessment of damages, though, is a useful first step toward an understanding "what you can get."

A useful second step is understanding and accepting that no person alive on the face of this planet can tell you exactly what you might get if your case proceeds to a contested hearing. In the end, you roll the dice. This is the nature of our system, and the uncertainty of the outcome of your case is based upon the fact that there are so many variables that go into any contested hearing. Is the case in arbitration? If so, who is the arbitrator? Is he biased toward the victims of injuries or is he someone who suspects that most victims are frauds out to cheat the system? Is the case before a judge? Who's the judge? What are his or her leanings when it comes to compensating injury victims? Is the case before a jury? Who's on the jury? Who are the attorneys? How will the parties, the attorneys and the jury interact?

It's impossible to know for certain the outcome of any given case. That's why it's important to work with counsel who understands the general value of a case and can assess, to the extent possible, the complex set of variables that go into a case.

There will be more about the subject of case value in future columns. Thanks for reading!