Category: Personal Injury

Oh What Fun It Is To Ride . . . A Hoverboard? This Year’s Must-Have Holiday Gift Poses Potential Litigation Risks for Manufacturers

back to the future hoverboardIn 1989, the Back to the Future franchise made several fanciful predictions about 2015.  One prediction may now be coming true: hoverboards have hit the streets — sort of.  The currently-available hoverboards, as opposed to the Hollywood fantasy ones, are more properly described as hands-free, self-balancing scooters.  Fueled by viral videos and celebrity social media posts, these battery-powered scooters are quickly becoming the must-have gift of the holiday season.

As the popularity of these hoverboards increases, however, so too does the potential for claims against manufacturers and sellers.  Over the last three months, the Consumer Product Safety Commission (“CPSC”) has reportedly learned about nearly 20 separate injuries from hoverboard-related accidents, ranging from sprains and contusions to broken bones and at least one head injury.

While the CPSC has not taken any formal action in response to any of these injury reports, that could change based on recent news reports. In the past two weeks, there have been two separate reports of hoverboards spontaneously igniting and causing a fire. This type of potential hazard could capture the attention of consumers, manufacturers, and regulators alike.

In Louisiana, a family reportedly has sued a hoverboard manufacturer claiming that the hoverboard burst into flames while charging, destroying their home.  In Alabama, a man recently posted a video showing his hoverboard engulfed in flames after it allegedly caught fire while in use.   Although the CPSC has said that it has not yet received any reports of injuries due to hoverboard fires, it has reportedly announced that it is investigating the product line based on these fire-related complaints.

Despite these reports, the market for hoverboards shows no signs of slowing, particularly as children make their wish lists for the holiday season.   As manufacturers, distributors, and sellers rise to meet that growing demand, they also should plan to meet the accompanying regulatory and litigation risks that follow.

Article By Stephen M. Copenhaver & Amy M. Rubenstein of Schiff Hardin LLP

© 2015 Schiff Hardin LLP

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.

Article By Stephen Fairley of The Rainmaker Institute
© 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

COPYRIGHT © 2015, 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.

ARTICLE BY Stephen M. Di Stefano of Stark & Stark
COPYRIGHT © 2015, STARK & STARK

Walking the Line: Tort Immunity and Pedestrians Outside the Crosswalk in the City of Chicago

Heyl Royster Law firm

Recently, the First District Appellate Court determined that a pedestrian who “walked the line” and was injured while partially inside and partially outside of a crosswalk was barred from recovering for those injuries from the City of Chicago. In Swain v. City of Chicago, the plaintiff was walking through an intersection and broke his foot while stepping in a pothole just a few inches outside of the marked crosswalk. Swain v. City of Chicago, 2014 IL App (1st) 122769 at ¶ 3.

The Illinois Supreme Court has recognized the well settled rule regarding the duty of a municipality to maintain its street in a reasonably safe condition “is that, since pedestrians are not intended users of streets, a municipality does not owe a duty of reasonable care to pedestrians who attempt to cross a street outside the crosswalks.” Vaughn v. City of West Frankfort, 166 Ill. 2d 155, 158 (1995). The court explained:

“[T]he question of whether a municipality owes a duty does not depend on whether the plaintiff-pedestrian was struck by a moving vehicle or tripped over a pothole, but rather depends on whether the municipality intended that the plaintiff-pedestrian walk in that part of the street where the injury occurred and permitted the plaintiff-pedestrian to do so. We note that, except for those cases in which street defects were in the area immediately around a parked vehicle, Illinois courts have refused to impose a duty on municipalities for injuries to pedestrians which were caused by those defects.” Vaughn, 166 Ill. 2d at 163. [emphasis added]

Vaughn further held that “local municipalities owe no duty to maintain streets and roadways in a reasonably safe condition for pedestrians who choose to cross the street outside the protection of the crosswalks.” Id. at 164.

This case serves as a reminder that public bodies benefit by having well maintained intersections and crosswalks that are clearly marked. When injuries allegedly occur within those intersections or crosswalks, the public body should take immediate action to (1) obtain an exact description of where the “injury” occurred and (2) examine and document the intersection and area immediately surrounding.

ARTICLE BY

Chrissie Peterson
OF
Heyl, Royster, Voelker & Allen, P.C.