February 15, 2010

How Many Wrongful Deaths Caused By Recent Defects Could Have Been Prevented By Toyota?

Toyota has initiated a recall of the more than 8.5 million affected vehicles with potentially faulty accelerators. The vehicles may be prone to sudden uncontrolled acceleration, which is alleged to have caused a number of crashes and 34 deaths. Congressional hearings are pending on a probe initiated by the National Highway Traffic Safety Administration into whether Toyota acted in a timely manner to initiate the recalls.

Toyota is facing a few different types of potential lawsuits such as class action, claims to recover "lost value", shareholder suits and traditional product liability claims initiated on behalf of people killed or severely injured in crashes allegedly caused by the accelerators. As an injury lawyer in Chicago, I pay closest attention to these individual product liability cases. As a matter of fact, this Toyota recall highlights a primary reason why I chose this profession. I get great satisfaction from representing individual families and giving them a voice against the large and powerful corporations and insurance companies. And, it angers me to know that neither Toyota nor federal regulators did anything significant to prevent the problem until enough people started dying. The LA Times reported that, based on its review of federal records pursuant to a Freedom of Information Request, there were 2,600 Toyota and Lexus car owner complaints of sudden acceleration from 2000 to 2010. Furthermore, CBS reported that Toyota was aware that its sudden acceleration defects were related to computer software, not to floor mats, as far back as 2005.

From Toyota's perspective, the 34 deaths thus far attributed to crashes caused by the acceleration problem represent a more than manageable legal risk for a company of Toyota's size. I know this is big business reality, but it still bothers me, especially knowing what they knew and when they knew it.

From my perspective, any of those deaths that could have been prevented should have been prevented.

You can bet Toyota will zealously defend these cases. Toyota is better situated to withstand the costs associated with a lawsuit compared to an unrepresented family of a victim.

If you know someone who has been severely injured in an accident involving a Toyota or Lexus, please do not hesitate to call the Chicago office of Strellis & Field, and we will walk you through your legal options (312) 201-0000.

Click here for a list of vehicles affected by the accelerator or floor mat issues (L.A. Times).

October 15, 2009

Brain Injuries in Youth Sports are Serious and are Finally getting National Attention

Traumatic brain injuries (TBI) contribute to a substantial number of deaths and cases of permanent disability annually. The Centers for Disease Control estimates that at least 5.3 million Americans currently have a long-term or lifelong need for help to perform activities of daily living as a result of a TBI. Approximately 75 percent of TBIs that occur each year are concussions or other forms of mild TBI.

One specific group at risk is youth athletes playing in organized sports. Most sports related traumatic brain injuries, TBIs, can be classified as concussions. Repeated mild brain injuries occurring over an extended period (i.e., months or years) can result in cumulative neurological and cognitive deficits, but repeated mild brain injuries occurring within a short period (i.e., hours, days, weeks) can be catastrophic or fatal. The latter phenomenon, termed "second impact syndrome" has been reported more frequently since it was first characterized in 1984.

Here is another example. During August 1993, a 19-year-old college football player reported headache to family members after a full contact-practice during summer training. During practice the following day he collapsed on the field approximately 2 minutes after engaging in a tackle. He was transported to a nearby trauma center where a CT scan of the head showed diffuse brain swelling and a thin subdural hematoma. Attempts to control the elevated intracranial pressure failed, and he was pronounced brain dead 3 days later.

Catastrophic effects from successive seemingly mild concussions sustained within a short period are not yet widely recognized. Second Impact Syndrome results from acute, usually fatal, brain swelling that occurs when a second concussion is sustained before complete recovery from a previous concussion. The risk for second impact syndrome should be considered in a variety of sports associated with likelihood of blows to the head, including boxing, football, ice or roller hockey, soccer, baseball, basketball, and snow skiing. These sports also present risks for single impact blows to the head that cause brain injuries; pitchers getting hit by baseballs at close range, hockey players getting checked down to the hard ice, and basketball players colliding at full speed as examples.

It goes without saying that when one suffers a severe brain injury the first priority is the health of the injured loved one. If your son or daughter suffers an injury in any respect, regardless of whether it is an organized practice or game, the same legal principles apply. An injured party may seek compensation for injuries so long as they are able to establish that the injury was a result of another's negligence. Whether or not a legal remedy is available depends on the facts of each particular case. In particular, the most important fact is whether or not anybody knew or should have known there was a risk that a severe brain injury could occur during the practice or game. This question is not as simple as determining whether the organization sponsoring the practice or game knew of the risk. The factual investigation into the cause of the injury may lead to the conclusion that there was a defective piece of equipment or property that caused the injury. A skilled attorney will be able to conduct an investigation in to all potential culpable parties.

Often times there are specific laws that deal with whether and the manner by which one can bring a lawsuit against an organization sponsoring a practice or game. In particular, special laws and time limitations may be in place for bringing lawsuits against municipal or school entities. Usually shorter statute of limitations apply to schools or municipalities. In addition, there may be issues with respect to exculpatory agreements in the event the injured party has reached a majority. These agreements may be used to prevent an injured party from recovering money damages against an entity that would be otherwise responsible for compensating a victim.

With respect to the potential compensatory results of a settlement or verdict, a severe brain injury obviously has long standing effects that will likely cause permanent disability, pain, future medical expenses and lost wages.

An injured party is able to seek compensation for his or her past and future medical expenses, past and future lost wages, past and future disability and past and future pain and suffering.

What if the brain injury occurs during an organized sporting event through high school or college sports programs?

These cases are a bit complicated depending on whether the school at issue is a private or public entity. As stated earlier, municipal and state entities have different laws that apply to them. Generally speaking those public entities have legislative safeguards that make it more difficult to successfully obtain a recovery.

Source: HeadInjury.com

Source: Centers for Disease Control

September 15, 2009

Brain Mapping Can Help Brain Injury Victims With Their Case and Their Recovery

I came across another interesting write-up from the folks in Berkeley on their website titled Science Today pertaining to new technology and understanding the brain. If I didn't represent brain injury victims in my law practice, I would probably think that magnetoencephalography would only come up in a New York Times or Chicago Tribune crossword puzzle. Physicist Robert Kraus of the Los Alamos National Laboratory has helped develop a helmet of sensors that can be used with a technique called magnetoencephalography to observe tiny electrical currents in the brain.

Brain Map Image.jpgExplained by Mr. Kraus, when you think, when you move a hand, when you see things, large numbers of brain cells or neurons fire in your brain all together - simultaneously. That produces a current. That current results in a magnetic field; that magnetic field comes out of your head and we measure the magnetic field all around your head with a sensor system.
Often times, in a brain injury case, you will have expert witnesses offering opinions as to the severity of the plaintiff's brain injury. These professional opinions naturally have an element of subjectivity, so I insist on understanding the science and medicine so that I may intelligently represent my clients. Magnetoencephalography could provide the brain activity measurement results to strengthen a brain injury case.


Beyond the benefits of using magnetoencephalography results in the courtroom, this technology can also help my brain injury clients with their recovery. The ability to map the brain and better understand how an injury has impacted the brain is significant information in the process of determining what treatments and therapies to focus on going forward.

Source: Science Today at the University of California (www.ucop.edu/sciencetoday)

Source: Brain and Spinal Cord.org (Brain Injury Statistics)

August 17, 2009

Quiet Hybrid Cars Pose Personal Injury Risks To Chicago Pedestrians

I am interested in technology and science. I believe an understanding of science is crucial to being a successful personal injury lawyer. Whether to better understand the science of medicine or the physics and engineering principles of a complex machine, science is crucial to our practice of law.

I came across an interesting topic titled Quiet Hybrid Cars Pose Risk To Pedestrians that was aired on Science Today. Hybrid cars on city streets are very quiet. If you live in the Chicago, I am sure that you will appreciate anything that would make life easier on the ears; however noise plays an important role in protecting and warning pedestrians that are walking across streets in the city. This is especially true for pedestrians with disabilities. Blind pedestrians rely upon hearing for almost every aspect of their daily lives. Luckily visually disabled persons have resources available to assist them in living independently. Organizations such as The Chicago Lighthouse are there to help.

This Science Today airing reminded me of a case we had in Cook County when our client, a blind pedestrian, was struck by a City of Chicago, Streets and Sanitation, garbage truck.

Blog #4 Chicago Garbage Truck RESIZED.jpgIn that case, our client was legally blind and had been trained by the good folks at The Chicago Lighthouse so that he could live independently, like he was doing on the day when he was returning home from the store. Unfortunately, even the loud noise of a garbage truck, could not prevent our client from being hit and dragged 30 feet from the crosswalk on North Avenue in Chicago. Our client suffered serious injuries including, bilateral femur fractures, a traumatic brain injury (TBI) and serious degloving injuries.


With new hybrid cars populating the roads, it is more important than ever for Illinois drivers to follow the rules of the road in yielding the right of way to pedestrians with disabilities, as outlined in the Illinois Rules Of The Road.

I, like most, would love to live with a minimal environmental footprint. However, with the new technology that will necessarily develop, it is important that pedestrians, those that are not using any fossil fuels by walking, and especially disabled pedestrians are not placed at an increased risk of injury.

Source: Science Today

Source: The Chicago Lighthouse

Source: Cyber Drive Illinois

August 15, 2009

Memory Loss Research Could Impact Traumatic Brain Injury Cases And Treatment

In this blog, I will periodically post links to recent literature that I find important in my practice. This is one of those blogs and the article that caught my eye is called Committing Single Events To Memory, from Science Today at the University of California.

Structure of the brain showing hippocampus.jpgWhen I first started handling traumatic brain injury cases (TBI) I was amazed at how much of the brain we do not understand. I find that due to this lack of knowledge, any traumatic brain injury lawyer must constantly be reviewing the latest scientific and medical journals that seek to understand more about the brain. This article addresses issues that may arise in the treatment of memory loss as the research seems to have isolated that Arc activation and regulation controls certain memory functions. In most TBI cases, memory loss is affected. This research could potentially affect my clients' treatment and their cases, and that is important to me.


Source: Science Today at the University of California

August 13, 2009

The Criminal Case Of Four Women Krazy Gluing A Man's Penis Is Interesting From A Personal Injury Lawsuit Perspective.

A woman accused of helping lure a boyfriend to a hotel room and gluing his penis to his stomach as punishment for his cheating ways says she and the other women went to the motel to confront the man and let him know they all knew what was going on.
Prosecutors say the women, including the man's wife and another girlfriend, lured the man to the motel to punish him for cheating. Court documents say the man agreed to be bound with sheets and blindfolded by one of the women, and that she used Krazy Glue to attach his penis to his stomach.

This is the type of story that the media loves, but as I look at it from the perspective of a personal injury case, here are my thoughts:

1. There is indeed an injury.

2. The criminal matter against the women involved in this case will definitely affect the personal injury action against these criminal defendants.

The women involved in this alleged battery have rights guaranteed to them by the United States Constitution. They each have the right to assert their 5th Amendment rights against self incrimination. Now, why would that come up in a personal injury action? If the criminal action against the women in criminal court is at the same time the personal injury action is pending in civil court, discovery, in the civil court would be interrupted and delayed until after the criminal proceedings.

Discovery is the process, in a litigated case, where the litigants have an opportunity to find out information about the contested issues in a case. In a personal injury action based upon negligence and/or battery, a party is entitled to take the sworn testimony of the defendant to find out, under oath and punishable by perjury, what they claim happened. If the criminal matter is pending, it is unlikely that the defendant would agree to provide sworn testimony in the personal injury action while they are still subject to criminal liability. This happens all of the time in personal injury cases where drunk drivers injure innocent people. A lot of times the drunk driver will be charged with DUI. Often times the injury case will be put on hold while the defendant decides how to best defend his interest in the criminal DUI case.

I still recall a case I had when I was a first year lawyer. In that case, an innocent cab driver was struck by a drunk driver. We tried to take the deposition of the drunk driver in the personal injury case but the defendant asserted his 5th Amendment rights against self incrimination in the civil action because he was still subject to criminal liability. The reason his deposition was important was because in Illinois an injured party has only one year from the date of the incident to file a lawsuit under the Dram Shop Act. In sum, this act allows an injured party to recover from an entity that serves an intoxicating beverage to a person that contributes to the intoxication of a person that injures another. Without the defendant's testimony about where he was drinking it is difficult to find the potentially culpable Dram Shop.

3. It is unlikely that any of the criminal defendants and/or ladies involved will be covered under their homeowners' policies.

The ladies involved in this case are being charged with an intentional act. A very common and almost universal exclusion to homeowners' policies is to exclude insurance coverage for the intentional wrongful acts of an insured. For example, we all remember that O.J. Simpson was charged with the murders of Nicole Brown and Ronald Goldman. After the jury in the criminal matter found Mr. Simpson not guilty, a wrongful death suit was brought against O.J. Simpson seeking compensation for the wrongful death of Nicole and Ronald. A verdict was entered against O.J. Simpson in the wrongful death action. Although O.J. Simpson had a homeowners insurance policy, covering him for the negligent acts he could have committed that would have caused injury, this insurance policy did not cover intentional wrongful acts, like murder; therefore the homeowners policy in effect on the date of the deaths could not be accessed as a form to collect on the verdict obtained. O.J. Simpson had assets that could be attached to partially satisfy the judgment, but often times this is not the case.

In this Krazy Glue case, Mr. X, will likely have a difficult time collecting against these women (potential defendants) due to the lack of coverage that will be afforded to them by the insurance carriers providing the homeowners policies.

4. As a trial lawyer, I think one of the most important aspects of evaluating any injury case is to look at how the case would be perceived by normal people that will be sitting as a jury in this case. This injury, although shocking at first, will likely be seeking compensation primarily for pain and suffering during the time his penis was glued to his stomach. I doubt that there will be any permanent injuries that would allow Mr. X to be compensated for his inability to engage in activities he did prior to the event. This would limit the amount of money he would be entitled to for compensation since the law is simply to compensate a person for the nature, extent and duration of the injury. Also, it is likely the jury would be less sympathetic to the victim given his past behavior. While it certainly doesn't justify a battery, he is not the most sympathetic victim.

Source: Chicago Sun Times

August 11, 2009

Boy Tragically Killed By Father During A Construction Accident On The South Side of Chicago

On August 11, 2009, Raul Torres, owner of Torres Construction, hauled a load of dirt in a Bobcat front loader toward a dump truck parked at a construction site in Chatham on the South side of Chicago. His company was repairing a basement floor in an apartment building that's being converted into condos. His son, Valente Torres, was playing on the sidewalk. The loader's back wheels rolled over the curb and the heavy steel bucket filled with dirt suddenly slammed toward the ground fatally crushing Valente's skull, according to a witness.

I read this article in the Chicago Sun Times and couldn't help but think of all the times I have brought my son, Zack, to work with me. Unlike Mr. Torres, I work in an office setting where the risks of workplace injuries are much lower. This unfortunate accident highlights the reasons why any construction site has the potential to be dangerous, and it is crucial that safety guidelines, including all OSHA regulations, are followed.

osha-logo.jpg OSHA regulations have been put in place by the United States Department of Labor with the purpose of providing a safe workplace for workers and those that find themselves in close proximity to construction projects. All of the regulations for workplace safety can be accessed through the
US Department of Labor website.

I recently resolved a workplace accident case where an experienced Chicago Laborer was seriously injured while working as a bottom man assisting in the installation of sewer pipe. Although my client was not operating the Target Pro 65 III Concrete Walk Behind Saw, he was in the zone of danger when the 36-inch diamond blade became a projectile and struck his left arm, severely injuring his left ulnar nerve. We brought a lawsuit against the general contractor on the job site and

claimed that they violated certain OSHA regulations that governed workplace safety when a concrete walk behind saw was being used.

This Torres case is tragic, yet I see little doubt that there is a cause of action for wrongful death of Valente Torres. The mother of Valente Torres could bring a cause of action against Torres Construction seeking compensation for the wrongful death of her son caused by the negligence of the company's employee. There is likely to be insurance to cover the negligent acts of the employees of Torres Construction. There may also be additional defendants that could be culpable based upon the results of the investigation as per how the bobcat functioned and whether any other company had a duty to provide a safe workplace. I wish only the best for the Torres family. Accidents do happen. Personal injury actions seek compensation for injuries suffered. Wrongful death actions seek compensation for the death of a loved one. In my opinion, this is the type of accident, although very unusual, that Torres Construction would be insured against.

Sources:

Chicago Sun Times - Boy killed by father at construction site was 'a sweet, loving kid'