Trial Attorney Blog

On Friday, April 4, 2008, the District Court of Appeals, First District, State of Florida upheld the Florida Office of Insurance Regulation’s suspension of Allstate from writing insurance in the State of Florida.

Allstate had been suspended weeks before for refusing to produce documents during an investigation of the company. The Florida market comprises 17% of Allstate’s national sales.

The court found Allstate guilty of arbitrary reductions of “bodily injury claim payments to its policyholders and beneficiaries by up to 20%.” It also determined that Allstate was engaged in ongoing criminal activity by failing to cooperate with the Office of Insurance Regulation’s investigation of a crime, and that this constituted a danger to the public health, safety or welfare of citizens.

Our Atlanta personal injury attorneys are constantly monitoring emerging rends in the legal field. Recently, a controversial test that is supposed to detect “malingering” is gaining popularity among defense experts in personal injury, workers’ compensation and other cases.

The “Fake Bad Scale” is being offered by medical experts as evidence that plaintiffs are fabricating or exaggerating their pain or other medical symptoms.

A few courts have ruled on the admissibility of the test, including three Florida courts that excluded testimony about it last year. In one of those cases, a trial judge in Hillsborough Country, Fla. ruled that the test was “not an objective measurement of effort, malingering or over-reporting of symptoms” because there was no manual for administering or scoring the test.

If you think the prescription drug you took for headaches caused your heart attack, the Food and Drug Administration says you can’t sue the maker for injury if it met agency standards. The Consumer Product Safety Commission (CPSC) says you can’t sue a mattress maker if your mattress bursts into flame despite meeting CPSC standards. Companies making sport utility vehicles would get similar protection from suits brought by people injured or the families of those killed in rollovers under National Highway Traffic Safety Administration (NHTSA) proposals for stronger roofs.

Consumer advocates call this “silent tort reform.” It is part of the tension between state and federal law that has existed since the nation’s founding. If there is a conflict, state laws must yield under Article 6 of the Constitution. But where there is no federal law, federal courts must defer to laws of the state where a lawsuit is heard. Big business and insurance companies are now using this to avoid responsibility for negligent actions and omissions at the expense of innocent consumers.

Under the Bush administration, a developing body of judicial opinion could place new limits on the rights of those who buy or use products. It also could mean the savings of billions of dollars by companies insulated from lawsuits.

A study released yesterday contained bad news for makers and buyers of portable defibrillators, devices that deliver electrical shocks meant to revive victims of sudden heart In the first major study of their use in household settings, researchers found no evidence that the devices produced significant life-saving benefits. The study, of more than 7,000 heart patients, concluded that patients in homes equipped with the gear died at the same rate as those without it.

Defibrillators were originally designed for ambulance crews. However, they have recently been marketed to consumers for use in homes.

Importantly, the study noted that the life-saving potential of the automated external defibrillators was well established in hospitals, emergency vehicles and in public settings like airports and casinos. At public locations there are typically employees close at hand who are trained to use the defibrillators.

Many wrongful death lawsuits have been brought against the manufacturer of the popular police taser device but according to the manufacturer’s boasts which are in the public record, no such lawsuits have been successful. And yet, practically every week it seems, another person is killed by the use of this product.

Our wrongful death and injury lawyers read last week a news article about a teenager who was killed by the use of a taser after an altercation inside of a grocery store near Charlotte, North Carolina. Apparently, a 17-year old teenager got into an argument with one of his supervisors at a grocery store and police officers were summoned to the scene. When the officers arrived, the teenager allegedly was highly agitated and allegedly refused all verbal demands. A police officer used a taser on the teen to subdue him. The taser killed the teenager, age 17. It appears from the news accounts of this incident, the death of this teenager was not warranted by his non-violent conduct as he had not committed nor was he charged with any crime. He was merely upset and agitated and was not a threat to anyone as he apparently had no weapons on his person.

Over and over again it seems that people are killed by this device and yet the device continues to be used by the police. While every case is different, of course, in many cases we read about the use of these tasers in cases where the suspect is not known to be violent, has committed no major felony or other violent crime, and yet is intentionally stunned with this product, sometimes with fatal results.

Thirteen (13) people have died (and many more injured) as a result of burns and other injuries sustained in the explosion at the Imperial Plant in Port Wentworth, Georgia. Investigators have expressed the opinion that sugar dust ignited and caused the explosion which resulted in these injuries and deaths. Because most of the people burned, injured or killed as a result of the explosion were employees of Imperial Sugar, unfortunately, they will be barred by law from suing their own employer. This is the state of law in Georgia. Workers’ Compensation benefits are available to injured employees but injured employees cannot sue their employer. The one exception to this “non-suit” rule is where a third party’s acts contributed to the injuries and/or caused the same. The employer still cannot be sued, but other “third party” companies can be sued if their acts contributed to the damages sustained.
From newspaper reports, it appears that Imperial Sugar contracted with a company called Stokes Contracting to clean sugar dust at the plant. Obviously, a full investigation would be required to see what the contractual duties and undertakings were, but assuming the newspaper reports are true, those injured and/or killed may have claims against Stokes Contracting and/or any other entity that provided such cleaning services. If the failure to properly clean the sugar dust out of the plant was a proximate cause of the explosion, then there could be third party liability claims brought against that third party, in this instance, apparently, Stokes Contracting.
Cases of this nature are always tragic for the families involved and for those seriously burned or injured. While only time will tell whether there are valid third party claims to be made, one would hope that the injured and severely burned would have remedies other than those provided under Georgia’s Workers’ Compensation statutory scheme. The Georgia Worker’s Compensation statutory scheme is quite limited in the remedies it provides to those injured on the job. For example, pain and suffering is not awarded at all and lost wage benefits are typically quite low, usually below $500.00 per week, which is very difficult for those who have been injured to live on. While Workers’ Compensation medical benefits are good, because these types of burn injuries can last for years and years, it is evident that those involved in these incidents will suffer for a lifetime and yet they receive no pain and suffering compensation under Georgia’s Workers’ Compensation scheme. This it is why it is important that someone involved in an incident of this nature confer with competent counsel to make sure that any third party remedies against third parties who may be also liable for their damages can be pursued.

Our Atlanta medical malpractice attorneys on occasion review cases in which surgical procedures are performed on the wrong side of the body.

Last Tuesday there was a report of a wrong site surgery at a Minnesota hospital. Surgeons at the hospital mistakenly removed the wrong kidney from a patient. The surgery was performed last Tuesday at Methodist Hospital in Minneapolis, but it wasn’t until the next day that it was discovered that the wrong kidney had been removed. A pathology examination of the removed kidney determined that it was healthy.

The doctor who removed the kidney was a veteran surgeon. The hospital while accepting responsibility for the actions, has pointed a finger at a paperwork mistake.

At least19 people have died, and hundreds became ill after being given heparin, a blood-thinning drug sold by drug manufacturer Baxter International. Baxter obtained the drug’s active ingredient from a Chinese manufacturer.

A belated inspection of the Chinese plant found substandard conditions. Recent lab tests revealed an unknown contaminant in batches of the drug, but researchers have not identified what precisely caused the allergic reactions which caused the deaths.

The Food and Drug Administration is required to inspect plants such as the one in China which supplied the heparin ingredient. However, under the Bush Administration, it has failed to follow this mandate.

Many surgery patients report that they awake during surgery. They say it feels like being trapped in a corpse, unable to move or scream. Some remember hearing their surgeons talk, and a few recall feeling intense pain.

Each year, as many as 40,000 of the 21 million patients undergoing surgery in the United States may experience inadequate anesthesia, leading to anxiety and even post-traumatic stress disorder if patients regain consciousness, according to the Joint Commission on Accreditation of Healthcare Organizations.

A widely used device that employs brainwaves to help doctors prevent patients from waking up during surgery is no more effective than an older, far less costly technique, researchers said on Wednesday. A study of nearly 2,000 patients reported in The New England Journal of Medicine showed the BIS device, made by Aspect Medical Systems Inc., did not help doctors prevent any more patients from waking up while under inhaled anesthesia.

It seems that everyday our personal injury lawyers open the paper, we read about another wrongful death in the context of a high speed police chase. One such case occurred this past weekend in Augusta, Georgia when a Sheriff’s Deputy was chasing a 19-year old suspect. Initially the officer involved pulled the suspect over and was provided his ID and driver’s license. Thus, the officer knew who the suspect was and where he lived. While the officer went back to his car to check on his tags, the suspect took off. A chase commenced but during the chase the officer was advised by his supervisor to terminate the chase because of the danger to the public. The supervisor advised this officer not once, but twice to terminate the chase but he did not do so. The predictable result ensued, that being that while the suspect was fleeing at 80 to 85 miles per hour he ran through an intersection and broadsided another car with the result that an innocent third party was killed. Once again, a high speed police chase occurred involving a non-violent felony and an innocent person paid the price for this reckless disregard of proper police procedure with their life.

Finch McCranie, LLP recently filed a wrongful death lawsuit in Augusta within the last few weeks alleging another wrongful death in another high speed pursuit. In that case, the police were chasing a suspected shoplifter. Again, the danger presented by the offense that was the basis of the pursuit was far outweighed by the danger presented to the public by the chase itself. In that case, 3 people were killed including an unborn child. In the most recent case which occurred this past Saturday, what is most disturbing is that the officer continued to chase the known suspect after being advised that he should terminate his pursuit. Allegedly, the officer claims that the did not hear the directive given to him over his radio. While this seems questionable, it is clear that if the officer’s supervisor thought the pursuit should have been terminated the officer himself should have realized this well before the fatal collision.

What is most disturbing about these cases in Augusta is that they are representative of cases occurring throughout Georgia and elsewhere. Indeed, we had just posted an article to this Blog about the death of a 21 year old Sgt. at Fort Benning, Georgia where the police were chasing a juvenile for joyriding in a stolen pickup truck when this most recent death in Augusta occurred. Indeed, as of the writing of this entry to our blog, our lawyers have filed 6 different lawsuits involving 8 deaths all arising in the context of high speed pursuits.