Long-Term Effects of Nonfatal Drowning Cannot Be Accurately Predicted

According to the Centers for Disease Control and Prevention (CDC), from 2005-2014, an average of 3,536 fatal unintentional drownings occurred per year in the United States. Approximately one in five people who die from drowning are children 14 years old or younger; children one to four years old have the highest drowning rates.

For every death caused by drowning, five children receive emergency room care for nonfatal drowning injuries. Nonfatal drowning can cause hypoxic-ischemic brain injury that may result in long-term disabilities ranging from memory problems and learning disabilities to total loss of basic functioning (persistent vegetative state).

A recent review study found that neurocognitive outcome of children after drowning incidents cannot be accurately predicted from early examinations and treatment. In the study, researchers sought to:  a) report the main factors related to the outcome of drowned children, and b) present existing evidence of long-term neurologic outcome. While some injuries caused by near drownings become evident shortly after the incident, the evidence showed that the initial neurological examination may not reveal all of the long-term effects related to hypoxic brain injury in young children. Skills such as divided attention and executive functions may be negatively affected after a brain injury caused by a nonfatal drowning. Long-term follow-up of drowned resuscitated children should be undertaken.

The review study showed that the long-term outcome of survived drowning victims depends mainly on the severity of the initial ischemic brain insult, the effectiveness of immediate resuscitation with transfer to the ER, and on the post-resuscitation management in the hospital. The study noted that the most susceptible areas to ischemic injury are vascular end zones, hippocampus, insular cortex, and basal ganglia. With greater severity of hypoxic-ischemia, more extensive and global neocortical injury will occur.

Electroencephalograms (EEG) provide useful information to differentiate between patients with good and poor neurological outcome. However, the accuracy in predicting long-term neurological outcome is lacking. The increased use of neuroimaging techniques such as MRIs can add valuable information. The ability to see the degree of edema and brain swelling is better with an MRI than with a CT scan. But the fact remains that data on long-term follow-up and outcome are scarce.

This post was written by Bruce H. Stern of  Stark & Stark.

Distracted Driving vs. DUI: The Legal Consequences

Distracted DrivingWith the explosion of cell phones in the consumer marketplace, texting and driving has emerged as a national health crisis for individual motorists, the public, and the courts. In 2013, 10 percent of all fatal crashes involved distraction, resulting in the deaths of 3,154 people. Additionally, it is estimated that another 424,000 people were injured in accidents involving distracted drivers.1 In addition to texting while driving, other types of distracted driving include talking on cell phones, eating, using in-dash electronics, and any other activity that takes a driver’s attention away from the road.2

In response to the problems presented by texting and driving, 46 states and the District of Columbia have instituted laws forbidding the action, criminalizing texting and driving as at least an infraction.3 At the same time, other forms of distracted driving, including using social media applications such as Twitter, Facebook, LinkedIn, SnapChat and recently, Pokemon Go, have emerged as major problems in their own right.4 In a study recently completed by Liberty Mutual Insurance, a survey of 2,500 teenagers revealed that almost 70 percent admitted to using social media apps while they drive.5 In another survey completed by the National Safety Council of 2,409 drivers of all ages, 74 percent of those who were surveyed indicated that they would use Facebook while they drove.6

Distracted Driving vs. DUI: Levels of Impairment

A 2006 study looked at the impairment levels of people who were using cell phones versus people who were intoxicated while driving. The University of Utah researchers used a driving simulator and compared study participants who were talking on their cell phones versus those who were legally intoxicated. The researchers looked at results using the simulator involving 49 adult participants who ranged in age from 22 to 45. They first obtained baseline driving results, then looked at driving while using cell phones and finally, driving with blood alcohol concentrations of 0.08 percent over a 3-day period.7 By looking at data obtained from driving profiles the researchers created using 10-second epochs, the researchers found that cell phone users, regardless of whether or not they were using hands-free or handheld devices, showed greater levels of driver impairment than did the drivers who were intoxicated by alcohol.8

Injury and Fatality Statistics for Distracted Driving Vs. Drunk Driving

The Centers for Disease Control and Prevention reports that distracted driving injures 1,161 people and kills eight every day in the U.S.9 By comparison, the agency reports that 28 people are killed every day in accidents involving drunk drivers.10 While the percentages of people using cell phones while driving has increased, drinking and driving has decreased.11, 12

Overview of State Laws: Distracted Driving vs. DUI Penalties in California and Alaska

The penalties for texting and driving vary from state to state. While the act is banned in 46 states, some jurisdictions, such as California, make texting and driving only an infraction. In California, a first offense is punishable by a fine of $20, and subsequent convictions are punishable by fines of $50.13

By comparison, Alaska treats texting while driving quite harshly, along with using other electronic devices while operating a motor vehicle. If a person does not injure another while texting and driving, he or she may still be convicted of a class A misdemeanor carrying a fine of up to $10,000 and imprisonment in a county jail of up to one year.14 If a person is injured in an accident caused by someone who was texting while driving in Alaska, the driver may be convicted of a class C felony, and if a person is killed, the driver may be convicted of a class A felony, making the felony sentencing range anywhere from 5 years for a class C conviction up to 20 years for a class A conviction and a fine of up to $50,000 for a class C conviction and up to $250,000 for a class A conviction.

As compared to its treatment of texting while driving, California takes a much harsher approach to people who are convicted of driving under the influence. For a first offense, a person may receive up to 6 months in jail and a fine of up to $1,000.If the DUI offense resulted in an injury, then the person may either be charged with a misdemeanor or a felony as a wobbler offense. A felony conviction can result in up to 3 years in jail along with a fine of up to $5,000.16

Distracted Driving: Does the Punishment Fit the Crime?

In states like California, which make texting while driving only a traffic infraction carrying very minimal fines, it is interesting to note the disparity between it and a DUI conviction in the same state. While texting and driving may cause greater driver impairment and potentially serious injuries or deaths, it is treated as a much less serious offense. In Alaska, by contrast, texting while driving is treated very seriously, potentially carrying penalties that are as great or greater than those for various levels of drunk driving offenses. The remainder of the states represents a mishmash, ranging between the four with no penalties at all to Alaska with the potential for a serious felony conviction.


Distracted driving is potentially just as or more dangerous than driving while under the influence of alcohol. With millions of people routinely texting while driving or using social media applications while driving, the roads are becoming more dangerous. Still, the states have yet to catch up to the dangers posed by these forms of distracted driving with a majority treating them as minor infractions. States should review the research and consider bringing parity between their DUI statutes and penalties with their statutes criminalizing texting and driving. An added emphasis on educational campaigns about texting while driving along with campaigns about using social media apps while driving may also be added steps that states should consider. Failing to take further action to curb these forms of distracted driving could be potentially disastrous.

ARTICLE BY Steven M. Sweat
Copyright © 2016 · Steven Sweat

1. NATIONAL CENTER FOR STATISTICS AND ANALYSIS, NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, [hereinafter NHTSA 2013 report] available at http://www.distraction.gov/downloads/pdfs/Distracted_Driving_2013_Resear….

2. CENTERS FOR DISEASE CONTROL AND PREVENTION, INJURY PREVENTION and CONTROL, MOTOR VEHICLE SAFETY, DISTRACTED DRIVING, 1 (2016)[hereinafter CDC report] available at http://www.cdc.gov/motorvehiclesafety/distracted_driving/.

3. Governors Highway Safety Association, Distracted Driving Laws (2016), available athttp://www.ghsa.org/html/stateinfo/laws/cellphone_laws.html.

4. Liberty Mutual Insurance, Teen Driving Study Reveals “App and Drive” is New Danger Among Teens, New Worry for Parents (2016), available at https://libertymutualgroup.com/about-lm/news/news-release-archive/articl….

5. Id.

6. National Safety Council, Distracted Driving Public Opinion Poll (March 2016), available at http://www.nsc.org/NewsDocuments/2016/DD-Methodology-Summary-033116.pdf.

7. David L. Strayer et al., Fatal Distraction? A Comparison of the Cell-Phone Driver and the Drunk Driver (2006), available athttp://www.psych.utah.edu/AppliedCognitionLab/DrivingAssessment2003.pdf.

8. Id.

9. Supra note 2.

10. CENTERS FOR DISEASE CONTROL AND PREVENTION, INJURY PREVENTION AND CONTROL, MOTOR VEHICLE SAFETY, IMPAIRED DRIVING, 1 (2016), available at http://www.cdc.gov/motorvehiclesafety/impaired_driving/impaired-drv_fact….

11. Distraction.gov, What is Distracted Driving?, http://www.distraction.gov/stats-research-laws/facts-and-statistics.html (last visited Aug. 2, 2016).

12. Matthew Chambers et al., UNITED STATES DEPARTMENT OF TRANSPORTATION, BUREAU OF TRANSPORTATION STATISTICS, DRUNK DRIVING BY THENUMBERS (2016), available at http://www.rita.dot.gov/bts/sites/rita.dot.gov.bts/files/publications/by….

13. Cal. Veh. Code § 23123.5(d).

14. Alaska Stat. §§ 28.35.161, 12.55.035, 12.55.135, 12.55.125.

15. Cal. Veh. Code §§ 23152, 23153.

Copyright © 2016 · Steven Sweat

E-Cigarette Explosion Injuries in California

E-CigaretteWe are seeing a rising number of incidents where E-Cigarettes are malfunctioning, catching fire or even exploding and causing serious bodily injury.  What started as an “alternative” to regular cigarettes, has now become a multi-billion dollar enterprise where these products are selling millions of units all over the world including California.  I am seeing more storefronts, especially in urban areas like Los Angeles, selling “electronic cigs” , “vapes” , “vapor pens”, “Vaping” and “Vapor” devices.  Unfortunately, these products have flooded into the marketplace in CA and across the U.S. without much early regulation or quality control.  This had led to issues where the products are heating up to a dangerous level, exploding and causing many types of injuries.

What is causing E-Cigs to Blow Up?

E-Cigarettes  are meant to mimic the sensation of traditional smoking by releasing a vapor to the user.  The process by which this takes place is a heating element inside the device that brings the liquid vapor solution to a boiling point.  This heating element must have a power source and that source in almost all types of vaping products is a lithium ion battery.  The problem arises when this heating process causes the electrolytes in the battery to overheat, expand and rupture.  The danger of such an explosion is further amplified by the fact that the batteries are located at the end of a cylindrical tube that is often made of either plastic or fairly low-strength metals like aluminum. The combustion can cause all or part of the E-Cigarette to be propelled outward and into the face, neck, hands or arms of the user.

Examples of E-Cigarette Malfunctions Causing Serious Injury

There have been numerous examples in California and around the U.S. where the malfunction and explosion of e-cigs have caused serious bodily harm including the following:

  • A 26 year old in Tustin, CA had to be rushed into emergency surgery when an e-cig exploded in his mouth.  A small piece of the apparatus was lodged in his mouth and had to be surgically removed.  He also sustained second degree burns to his face and lost several teeth.

  • A man in Bakersfield, CA had to have his left (dominant hand) index finger amputated when a device exploded as he was putting it to his mouth to smoke.

  • A jury in Riverside County awarded a lady $1.9 Million dollars against the distributor of e-cigarettes due to injuries sustained after the combustion of the device in use.

  • A retired Los Angeles Galaxy soccer player filed suit after suffered facial damage that made him “unrecognizable”.  This case is still pending in the Orange County Superior Court.

The potential legal responsibility for e-cigarette injuries

California, like most states, has laws that are meant to protect consumers and allow for compensation if they are injured by any type of product that is either negligently manufactured or negligent in its design.  Causes of action for recovery of damages may include so called “strict products liability”, failing to warn users of the potential dangers of product use and breaches of express or implied warranties.  The problem becomes that many of these products are being sold by “mom and pop” retailers that may not have insurance coverage.  Holding both the manufacturers and distributors are possible under California products liability laws, however, many of these devices are being manufactured in China and other places and tracing the origin of the product can be difficult. It may also be difficult enforcing a money judgment against a foreign company.  This leaves personal injury attorneys having to do a little further investigation into other possible defendants such as U.S. companies that import the products into the states.

Once litigation has commenced, other hurdles still remain.  One of the main counter arguments is that the victim was “comparatively at fault” for their own injury by their use or alleged “misuse” of the e-cigarette vaping devices.  These arguments can be overcome by a quality personal injury law firm familiar with product defect claims.  For example, there are many consumer products such as cell phones that are prone to heating up with use but, have not been found to explode.  Therefore, the average consumer would not consider this to be a likely scenario.

The bottom line is that e-cigarettes are being sold by the millions to consumers all over California from Los Angeles to the  San Francisco bay area. When used as a normal consumer would (i.e. in a manner same or similar to a regular cigarette), the devices should not heat up to the point where they explode and send shrapnel into the hands, face and body of the user.

Copyright © 2016 · Steven Sweat

5 Tips for Personal Injury Attorneys Opening a Mass Tort Practice

Attorneys nationwide are joining the trend to add mass tort claims to their personal injury practice. Based on conservative estimates, two to four million people per year are seriously or fatally injured in mass tort cases.

Most mass tort cases are product liability cases against pharmaceutical and medical device companies. Other types involve airplane crashes, train wrecks, hotel fires, asbestos, patent, antitrust price fixing, data security breaches, securities fraud and employment claims.

It is the only practice in which economies of scale exist. These cases are national and involve filing same primary claim over and over for multiple plaintiffs. The math is compelling: in the right situation it can cost $1,500 to acquire a client with a case that will settle for $300,000, according to John Ray, senior consultant for Mass Tort Nexus and a former pharmaceutical executive.

“It is a multi-billion dollar immature market, with economies of scale and only a single barrier to entry. You have already overcome the barrier, if you hold a bar card,” Ray said.

The best strategy is to find a mass torts case with strong liability, many plaintiffs, a financially viable defendant, high settlement values and a reasonable cost to acquire a client. Here are five tips:

  1. Timing.

There are several optimal moments to seek mass tort clients:

  • In the emerging phase, when many attorneys are advertising about a particular mass tort. Most patients do not connect their prescription with an adverse event. The highest consumer awareness exists when advertising is at its peak. Currently this includes IVC Filters, Bair Hugger blankets, Invokana, Xarelto, Pradaxa, Transvaginal Mesh, Morcellator, talcum powder, Zofran and Metal-on-metal hips, according to Steve Nober, CEO of the Consumer Attorney Marketing Group.

  • MDL phase. When the federal courts create a multi-district litigation docket (MDL) for the mass tort. There are 300 federal MDLs, which organize hundreds of cases and promote settlements with trials of bellwether cases. Courts will create a form complaint and plaintiff’s fact sheet, which can be found on Mass Tort Nexus. The MDL plaintiffs committee works on all the scheduling, motions and trials.

  • In the settlement phase, when the defendant announces to its stockholders that it has set aside a settlement fund. At this point, attorneys are signing clients to settle their cases.

  1. Marketing.

The goal of any form or marketing must be to educate clients about the side effects of the product they used. Lawyers should use clear, concise language that the general public will understand. Your marketing should be about the client — not about the firm. Don’t’ forget to state that clients do not pay legal fees unless you win the case.

Marketing tactics that work include:

  • Pay for Performance Advertising. The attorney pays for a call and is not buying leads. The charge depends on how long the phone call lasts.

  • Strong Organic Web Presence. More people are filling out forms on lawyer websites, and the firm should have trained intake personnel to contact the person within minutes.

  • Standard Television Advertising. Bear in mind that a consumer will watch an ad 12 times before acting, according to Ray. TV ads will create the lexicon that people use to search for lawyers online. Smart lawyers will incorporate the exact wording of TV ads into their website.

  • Buying Leads (Caveat Emptor). Ray advises to be suspicious about lead generation companies, because there are many disreputable companies that will sell a single lead to five or six different law firms.

  1. Partnering with a law firm.

Many of the leading mass tort law firms will accept referrals in a co-counsel agreement. In this arrangement, a lawyer agrees to accept a fraction of the recovery in exchange for the other firm prosecuting the case.

A better approach is to create a co-counsel consortium, akin to entering a partnership where two firms agree to represent a client. It can be argued that no referral occurred and the word “referral” never appears in the agreement. Both firms are equally responsible and the originating attorney can claim a larger percentage. The client is getting more lawyers on his team — a dream team — but is not paying any additional legal fee.

  1. Beware of common legal risks in drug or medical device cases.

  • The Mensing Factor. The Supreme Court decided Pliva, Inc. v. Mensing in 2011, holding that failure-to-warn claims brought against manufacturers of generic medications under state law are pre-empted by federal law.

  • PMA Preemption Potential. Makers of Class III Medical Devices that undertake the FDA’s stringent premarket approval process can be exempt from certain product liability claims. See Riegel v. Medtronic, decided by the US Supreme Court, 128 S.Ct. 999 (2008).

  • Statute of Repose Issues.

  1. Evaluating your firm.

Evaluating the resources of your firm is good place to start, before delving into other considerations necessary to develop your firm’s road map to mass tort success. See which Navy ship matches your firm.

Is your firm a super carrier?

A Super Carrier is a well-established firm with a large number of lawyers and support staff and extensive in-house logistical capabilities. It has the financial reserves needed to take on all necessary tasks of mass tort litigation, without the need for outside funding or outsourcing of services.

Is your firm a destroyer?

A Destroyer is a well-armed firm loaded with weapons (human resources and an abundance of cash.) These firms move fast to develop and deploy an attack plan, for any given mass tort case. A Destroyer may still need to seek outside funding or outsource certain services, if it wishes to take on a large number of clients in a mass tort case.

Is your firm a patrol ship?

Being a Patrol Ship has more to do with strategy than any other factor. Some firms take a conservative approach to mass torts. They stay on constant patrol and only make a move when a mass tort case arises and reaches a point that allows taking clients for the case, within the risk tolerance limits of the firm.

Are you one guy in a row boat?

  • If you are a sole practitioner, with little to no staff and want to enter the mass tort space, you can, but your approach has to be realistic and you must have a relevant starting point.

  • Many sole practitioners sit on the sidelines, believing that they are not ready for the leap into mass torts. Others jump in and reap the benefits of participation.

  • If your practice has a docket of general PI cases or other assets, in most situations, you can obtain the funding to make the leap. The proceeds from your limited entry into mass torts can be used to finance future expansion of both your PI practice and additional mass tort cases.

© The Rainmaker Institute, All Rights Reserved

Age and Sex Differences in Working Memory after Mild Traumatic Brain Injury: Functional MR Imaging Studies

A new study published in Radiology evaluated the age effect on working memory performance and functional activation after mild traumatic brain injury. According to the abstract, researchers at Taipei Medical University-Shuang-Ho Hospital in Taiwan compared a group of thirteen individuals between the ages of 21-30 (with a mean age of 26.2 years) to a group of thirteen older patients who had an age range between 51-68 years (with a mean age of 57.8 years). Both groups had sustained mild traumatic brain injuries (MTBI). The researchers compared these twenty-six patients with twenty-six age- and sex-match control subjects. Functional MR images were obtained within one month after injury and six weeks after the initial study. Researchers performed group comparison and regression analysis among post concussion symptoms, neuropsychological testing and working memory activity in both groups.

The results showed different manifestations of post concussion symptoms at functional MR imaging between younger and older patients, which confirmed the important role of age in activation, modulation and allocation of working memory processing resources after mild traumatic brain injuries. The researchers concluded that these findings also supported the observation that younger patients have a better neural plasticity and clinical recovery than older patients.

David Yen-Ting Chen, the lead author of the study, stated in a press release, “old age has been recognized as an independent predictor of worse outcome from concussion, but most previous studies were performed on younger adults.” Dr. Chen went on to state, “taken together these findings provide evidence for differential neural plasticity across different ages, with potential prognostic and therapeutic implications. The results suggested MTBI might cause a more profound and lasting effect in older patients.”

The researchers also looked at the differences between men and women. They found that female patients with MTBI had lower digit span scores than did female control subjects, and functional MR imaging depicted sex differences in working memory functional activation; hypoactivation with non recovery of activation change at follow-up studies may suggest a worse working memory outcome in female patients with MTBI.

Again, this is just another example that refutes defense allegations that mild TBI always goes on to uneventful healing and recovery with 3-6 months.  If you or your family was injured and sustained traumatic brain injuries, it is encouraged that you seek experienced legal counsel.

Article By Bruce H. Stern of Stark & Stark


Property Owner Personal Injury Liability – Dangers That Lurk Around the Corner for Social Guests

With the summer in full swing, many people will see their social calendars filling up with fun events such as parties, gatherings, events, and the like. While summer is a time for fun, we need to remember that regardless of whether we are hosts or guests, safety is always an important factor that all of us need to consider. Always be aware of your surroundings, especially if you are in a new or unfamiliar place. In a recent case, a college student was attending an event at an off-campus house. While on the fourth floor of the house, she sat on a piece of flex board covering a raised skylight opening. The board gave way, and the student fell nearly 20 feet through the house before eventually sliding down the stairs and landing on her head. She suffered a T12-L1 spinal dislocation with transaction of the cord and a C4-5 disk herniation, resulting in paraplegia. She underwent spinal surgery and incurred $1.2 million. She now uses a wheelchair and requires assistance with many activities of daily living. Her projected future medical expenses and life-care costs are estimated at about $6.2 million. She sued the property owners, alleging they were negligent and reckless in allowing the skylight opening to be covered with a thin piece of flex board. She also alleged that they were negligent in failing to repair the condition or warn visitors of the hazard and prevent visitors from accessing that area.

The plaintiff also sued the tenants of the property, alleging that, under the terms of the lease, they were required to notify the landlords of any conditions that were dangerous or in need of repair. The tenants acknowledged this was a dangerous condition, that it existed for a full year before the incident, and that they never told the landlords about it. The owners of the home argued that the skylight opening was nailed shut with a 3/4-inch plywood board during building renovations in 1980 and they were unaware that the original plywood board had been removed. They also maintained that the tenants failed to warn them of the hazardous condition and argued that the lease specified that the tenants had a duty to warn them if an issue existed. The homeowners also argued that the tenants were in exclusive control and possession of the building and were therefore solely responsible. They alleged that the plaintiff was intoxicated at the time of the fall, with a blood-alcohol content of 0.26%, and that she had marijuana in her system. The parties settled the case during pretrial mediation for $11.6 million, paid by various insurers for the homeowners and the tenants.

This case is a clear example of the dangers that lurk for the unwary social guest. Hidden defects, sunken living rooms, broken exterior concrete steps, and doors that conceal basement steps are all common examples of hazards for guests. If you are a homeowner, make sure your house and property are in good condition and do not pose any safety hazards for people coming onto your property. If you are a guest at someone’s home or property, always look before you sit in an area or walk into an area. If you have been injured on someone else’s property as a result of their negligence, you should contact legal counsel right away to discuss your situation.