Attorney Blog

Injured Passengers of Cruise Lines Might be Without Compensation

Tue, 24 Jan 2012 08:00:00 EST

Lawyers from two U.S.law firms as well as the Italian consumer group, Codacons, are expected to file a class action lawsuit in Miami on behalf of passengers on board the Costa Concordia cruise liner. The lawsuit will likely name Costa Cruises and its parent company, Carnival Cruise Lines. Attorneys for the passengers state they will ask for approximately $160,000 per passenger in damages. Typically, damages include items such as the injured person’s medical bills, lost wages, and pain and suffering. Many passengers report bodily injuries and mental anguish as a result of the crash. For example, one passenger and her daughter say they are unable to sleep well and relive the memory of the incident daily.

The liner went down off the coast of Italy last week after hitting a sand bar. After the ship hit the bar and began to sink, there was reportedly utter chaos on board, and it took hours to get passengers off the ship. Reportedly, the ship’s captain left the vessel with most passengers still on board. Some passengers report being forced to jump from the ship and swim to shore, others got into life boats and made it safely ashore. Sadly, other passengers were not as fortunate and at least 16 bodies have been recovered from the ship to date, and approximately 20 people are still missing.

At least 16 people needlessly lost their lives, and many of the 4,500 passengers on board were injured by the cruise line’s negligence. But, due to legal maneuvering by the cruise line, passengers may never be fully compensated for their injuries. Usually, all types of damages would be part of what an injured person is compensated for during a lawsuit. However, in cases where people are injured on cruise ships, passengers’ tickets could be preventing them from being fully compensated for their injuries. Passengers’ tickets are actually contracts with the cruise line and contain much more information than most people realize. These contracts often release cruise lines from being responsible for passenger injuries without the passenger ever realizing it. Most often, the contracts contain provisions that prevent passengers from making claims for pain and suffering after they are injured by a cruise line. Passengers agree to these provisions and waive their rights to be fully compensated when they purchase the ticket from the cruise line.

Also included in the language of many tickets is what is called a forum selection clause. This means the cruise liner states the country and court system any lawsuit or claim for injuries must be filed. Most likely, the tickets held by passengers of the Costa Concordia state claims for injuries must be brought inItaly, not theUnited States. This creates a huge burden on passengers from around the world and is another obstacle to prevent cruise lines from paying for the injuries they cause. Why, then, is the lawsuit being filed inMiami? I am not involved in this case and can only speculate, but I suspect it is in hopes of finding ways around the clauses put into passenger contracts by the cruise line.

Reportedly, Costa Cruises is offering passengers a full refund, travel expenses, reimbursement for any on-board expenses and credit card charges, and full payment for documented medical expenses. However, such an arrangement does not fully compensate passengers for their injuries. Most notably, the cruise line is offering nothing for passengers’ pain and suffering, such as the mental effects of what is described as a chaotic and terrible situation on board. The offer also does not include longer-term care options such as for future medical expenses.

So, even if the attorneys are successful in brining the lawsuit inMiami, there are likely still obstacles to the amount and types of damages passengers can recover. I will be following the lawsuit as it progresses.

West Virginia Over Louisville, Really?

Fri, 06 Jan 2012 08:00:00 EST

In October (Yes, it is over 2 months later but who cares) the Big 12 Conference formally invited West Virginia to join them in the illustrious and historic BCS conference located in the Midwest. The decision to leave the Big East must have been an easy one for the school from Morgantown, knowing that their best sport was American's newest favorite past time, football, and that the largest basketball conference in the nation was on a downward slope for football.

The University of Louisville (herein Louisville) was the frontrunner for the last spot in the Big 12 for months so people have wondered why Louisville will not be playing host to football powerhouses Texas and Oklahoma in 2015. Well it is because of the mastermind Tom Jurich. Many scold him for not taking the invitation immediately, but Jurich made a decision that was in the best interest of his school.

To understand Jurich's decision, you have to look at the bigger picture. The University of Texas wanted a national television network and they wanted a change. This prompted them to attempt a changeover from the Big 12 to the newly formed PAC-12. Had this occurred, it was said that Oklahoma would go with them leaving Big 12 football with.........Texas A&M? Kansas State? That doesn't seem very exciting for a school trying to prove it's worth (Louisville) and certainly does not give an impression that the Big 12 has everything under control. So why would Jurich want to leave a stable conference (at that time) for a seemingly unstable one? Exactly, he wouldn't. The first invitation came when the Big East was intact.

Well, just like any rich kid who was used to getting their way as soon as they wanted the Big 12 got tired of waiting on Jurich and invited the University of West Virginia, the small town, couch burning school from Morgantown. Now what did West Virginia have that Louisville wasn't already better at? Oh right, football! That's it. They didn't have better academics, their overall sports were worse, and, let's face it, Morgantown vs. Louisville? Really? Burns Hargis, the Oklahoma State University President and chairman of the Big 12 board of directors said, "The addition of West Virginia, while expanding the reach of the Big 12, brings an impressive institution with esteemed academics and a proud athletic tradition into the Conference. This is another step in building a strong foundation for the future of the Big 12," It seems Mr. Hargis is trying to make a credible defense for adding West Virginia over Louisville, but it is clear that the reason for the invitation is their consistency in the top 25 (hyperlink) and not because they bring great academics.
The most intriguing time during this situation was when politics became involved. Kentucky’s longtime Republican senator, Mitch McConnell, stepped up to the plate. As an alumnus of UofL, he made phone calls to Big 12 officials to try and convince them to change their minds. Now I am usually not a fan of Mr. McConnell but this was one time I was proud to call him my senator. But then Senator Joe Manchin of West Virginia decided to step in and voice his opinion as well. This was all funny and interesting at the same time because it was said that the Big 12 was set to officially invite West Virginia to join, but this was put to a halt because of the political game that was being played for a short time.
Unfortunately, soon after the Senator’s interference those Mountaineers got the call that every Louisville fan dreaded would come. They accepted their bid to the Big 12 almost immediately, which Louisville would have also done had they been offered a bid at this time rather than months prior. Now in a few years West Virginia gets to host the Longhorns and Sooners, while the Cardinals are stuck with exciting new programs that include (but are not limited to!) Southern MethodistUniversity and Central Florida.
To add icing to the cake above all of this is that West Virginia has the audacity to try and sue the Big East, claiming that the conference has not maintained a balance between the football and basketball schools in the conference. It is argued (and I agree) that West Virginia is attempting to sue to get out of having to pay a $10 million exit that the Big East has recently required of it’s members that are leaving while still under contract. With all the recent problems West Virginia has caused the Big East, I say good riddance and from a UofL fan I will tell the Big 12 that I will see you within five years.

Saint Joseph London Stent Case WHAS News Video

Fri, 30 Sep 2011 08:00:00 EST

Watch the WHAS 11 Investigation Team News Story about the lawsuit filed by the Poppe Law Firm against Saint Joseph London, Catholic Health Initiative, and Drs. Patil, Chalhoub, and Patil alleging they were involved in recommending, performing and allowing Edward Marshall to undergo numerous unnecessary heart surgeries including stents and a pacemaker.
The lawsuit is similar to claims made against Saint Joseph Towson Maryland and Dr. Mark Medei for the performance of hundreds of unnecessary stents in order to increase revenue for the hospital.

hans

Saint Joseph London Stent Case News Video

Wed, 28 Sep 2011 08:00:00 EST

WHAS 11 Louisville ran a story on the stent and heart cases filed in London, Kentucky against Saint Joseph London, Catholic Health Initiative, and several London, Kentucky doctors. Watch the video and read about it here.

hp

Sentinel Echo Writes About Saint Joseph London Stenting Lawsuit

Thu, 22 Sep 2011 08:00:00 EST

Here is a link to the Sentinel Echo article on the unnecessary stenting lawsuit we recently filed in London, Kentucky. The suit alleges various London, Kentucky cardiologists were performing unnecessary stenting procedures, catheterizations, and other heart procedures on patients that did not need them. Saint Joseph and Saint Joseph-London are named as defendants along with Drs. Chatterjee, Chalhoub, and Patil and their medical groups You can read the lawsuit here
hp

Unnecessary Stenting Lawsuit Filed In Kentucky

Wed, 21 Sep 2011 08:00:00 EST

Hans Poppe of The Poppe Law Firm and London, Kentucky attorney Gary Hudson have filed suit against a number of medical providers for performing unnecessary stenting, catheterizations and other unnecessary heart procedures. You can see the Complaint here. The suit alleges CATHOLIC HEALTH INITIATIVES, INC., SAINT JOSEPH HEALTH SYSTEM, INC., SAINT JOSEPH-LONDON, PREMIER HEART AND VASCULAR CENTER, CARDIOVASULAR SPECIALISTS OF THE CUMBERLANDS, PLLC, THE MEDICAL SPECIALISTS OF KENTUCKY, P.S.C, MANAGEMENT SERVICE ORGANIZATION OF KENTUCKY, INC., M.S.O. OF KENTUCKY, INC., SATYABRATA CHATTERJEE, M.D., SANDESH PATIL M.D., and ANIS CHALHOUB M.D. were all involved in scheme to profit by perfoming unnecessary stenting and other heart procedures on patients.
Recently, Saint Josephs agreed to pay the federal government $22 million dollars to resolve similar claims arising out of unnecessary stenting procedures at a facility in Towson, Maryland. The money was paid to resovle claims by the federal goverment that the facility engaged in and profited from improper and unnecessary cardiac stenting procedures performed by Dr. Mark Midei, a cardiologist at St. Joseph Medical Center in Towson, MD. Dr. Midei lost his license to practice medicine.

I'd like to know what you think about doctors performing unnecessary heart surgery on patients that don't need it.

hp

Why We Haven't Been Blogging

Tue, 02 Aug 2011 08:00:00 EST

O.K. it's obvious I haven't been blogging nearly as much recently. But don't quit following us just yet! I've got a good excuse, we've been preparing for three back-to-back trials in August, September and October. We are working hard for our clients, but our blogging suffers as a result. So, if I had time to blog I would have done so about the following issues:

Norton's could have some serious liability for a heat stroke death; and

UofL hospital merger, who is really in charge of this place any way?

be back soon,
hp

Kentucky Bar Votes to Disbar Famous Lawyer Stan Chesley

Wed, 15 Jun 2011 08:00:00 EST

Readers of this blog are likely familiar with our posts regarding the Kentucky Fen Phen litigation and the resulting criminal and disciplinary matters surrounding it. Two of the four lead lawyers have been placed in prison and now, famed class action lawyer Stan Chesley is facing disbarment for his role in the litigation and settlement of the Fen Phen class action. You can read the Trial Commisioner's february recommendation Here.

Yesterday, the KBA Board of Governers agreed with the Trial Commissioner and voted to disbar Chesley. Chesley has also ben ordered to pay back millions of dollars to his former clients that the KBA claims Chesley was not entitled to.

You can read the entire article at the Courier Journal website:

A trial has also been set for next year in another matter against Chesley claiming he improperly handled the settlement of another Kentucky class action against the Covington Diocese for childhood sexual abuse claims.

hans

U.S. Government Claims Immunity in Tort Claim

Tue, 14 Jun 2011 08:00:00 EST

An FBI agent wrecked a rare Ferrari, and the goverment is now refusing to pay the insurance company the value of the car. The Ferrari, a 1995 F50, was being stored in Lexington, Kentucky as part of an investigation on stolen vehicles. In May 2009 an FBI agent went for a ride in the car when he lost control and landed against bushes and a tree.

The Ferrari is insured by Motors Insurance Co. who is suing the U.S. Justice Department for $750,000. Motors Insurance claims the vehicle is a total loss. The Justice Department, however, is refusing to pay the claim because the goverment says it is immune to tort claims when certain goods are handled by law enforcement.

The next court date in the case is June 13.

Hulk Hogan Lawsuit Dismissed by Florida Judge

Tue, 14 Jun 2011 08:00:00 EST

Hulk Hogan's lawsuit against Wells Fargo and his ex-wife was dismissed by a Florida judge this month.

Hulk Hogan sued Wells Fargo and his ex-wfie, Linda, last year. Hogan alleged in the suit Wells Fargo Southeast did not inform him of an additional umbrella policy to cover his assets. The suit also alleges his ex-wife, as his manager, did not obtain the right insurance for Hogan.

The suit stems from Hogan's son's 2007 car accident where a passenger suffered a serious brain injury. Hogan was liable on the injured passenger's claim because he signed for his son's driver's license and Hogan's insurance was inadequate. Hogan settled the claims related to teh accident, including an out of pocket payment.

Because of the out of pocket payment, Hogan alleges his insurnace broker at Wells Fargo did not protect his wealth. Hogan says the broker, whom he relied on for ten years to provide his insurance, could have protected him by telling him about additional insurance policies.

Prior Traffic Violations Predict Truck Drivers Likelihood of Future Accidents

Thu, 26 May 2011 08:00:00 EST

How would you predict a truck driver’s likelihood of getting into an accident? You might be surprised by the answer. 582,772 truck drivers were studied between 2007 and 2009, and a driver’s risk of a future accident increased by more than 50% when he/she had certain prior traffic convictions.

A prior accident ranked second, with an 88% probability, in the study conducted by the American Transportation Research Institute (ATRI). Tied for second place was an improper passing violation. Down the list: improper turn conviction came in at an 84% risk, improper or erratic lane change at 80%, improper lane or location and failure to obey a traffic sign both at 68%, speeding at more than 15 mph over the speed limit at 67%, any prior driving conviction at 65%, and finally, reckless careless inattentive or negligent driving came in at 64%.

So, what’s the violation that gave truck drivers the greatest chance of being involved in a future accident? Failure to use a turn signal! The study found that a driver with a prior citation for failure to use a turn signal increased his/her chance of being in a future accident by 96%!

Despite these statistics, truck on car collision rates are at an all time low, according to Dan Murray, Vice President of Research at ATRI. The “fundamentals of good driving behavior” is crucial to keeping up the downward trend, he says. And, the rate of truck driver’s convictions for a variety of offenses has also been on the decline in recent years.

What does this mean for all of us on the roads across the country everyday? Hopefully what this indicates is that truck drivers are practicing safer driving techniques, making everyone on the roads safer and decreasing your risk of being involved in a collision with a semi.

What Do Charlie Sheen, Nursing Homes And ABC Have in Common....

Mon, 04 Apr 2011 08:00:00 EST

By now, everyone not living under a rock has probably seen at least one late night talk show with a rambling Charlie Sheen explaining that, despite his shambled appearance, he is "Winning" and explaining that "[CBS] picked a fight with a warlock." You probably also know his late night antics got him fired from his show, Two and a Half Men. Sheen is fighting back and filed a lawsuit claiming the show breached his contract by firing him when he was sick (has anyone figured out what is wrong with him? Both Dr. Phil, and Dr. Drew have weighed in already.. paging Dr. Seuss....)
Anyways, so what exactly does the self proclaimed "bi-winning" "F-18" "rock star from Mars" actor's lawsuit have to do with YOU? More than you might think!
You see, CBS has lawyers. Lots and lots and lots of good lawyers (some are probably even as good as me!) And you see, these smart lawyers have a job, and that is to protect CBS from lawsuits because lawsuits place common every day people on equally footing with million dollar corporations. They don't like that. So, these good smart, corporate lawyers look for ways to avoid being taken to court before they are sued. You see, the CBS lawyers inserted something into Charlie's contract to prevent him from suing CBS in court. It's called an Arbitration Clause.
Arbitration is a form of alternative dispute resolution. That's a fancy way of saying "If you sign this you can't sue us in court and tell your case to a jury." Arbitration forces you to bring you claim to an arbitrator or a panel of arbitrators who then listen to both sides and decide the case. The decision is final and neither side can appeal. This is important because this means You lose accountability. The arbitrator is not accountable to a higher court, like a judge or jury would be. The arbitrator is the final decision maker. According to Public Citizen, a consumer advocacy group, had this to say about the bias in favor of corporations that is built into the system:

For the most part, however, we believe the bias is built into the system, not the result of conscious decisions to favor big business. First of all, a fee structure that imposes costs disproportionately on claimants rather than defendants will necessarily favor defendants, because it discourages claims.

Second, arbitrator panels that consist primarily of business executives and corporate lawyers are less likely to have sympathy for claimants.

Third, businesses are more likely to be repeat customers of arbitrators, so there is a disincentive for an arbitrator to displease them.

The evidence that the second and third factors produce bias is the award amounts. Side-by-side comparisons of arbitrator awards to jury verdicts in similar types of cases consistently show that claimants in arbitration are awarded less than plaintiffs in court.

In fact, courts in some states have determined that some arbitration groups were so biased tthey should no longer be allowed to arbitrate consumer disputes in those states. An example of just one such case came out of Minnesota where the Attorney General sued the National Arbitration Forum for consumer fraud, deceptive trade practices, and false advertising. The civil suit, filed in state district court in Minneapolis, alleged conflicting ties between the NAF and debt-collection law firms that represented major credit-card companies. The suit also alleged that New York hedge fund Accretive LLC owned stakes in such collection law firms and the NAF, sending arbitration business between the two. Ultimately the NAF agreed to stop conducting consumer arbitration of credit card disputes and healthcare litigation.

So, what does this have to do with You? Our firm is seeing arbitration clauses popping up more and more frequently and no where are we seeing them more frequently than in nursing home admission paperwork and hospital admission paperwork. DO NOT SIGN AN ARBITRATION CLAUSE!!!! A nursing home or hospital cannot deny admission to a patient because they refuse to sign an arbitration clause--- so there is absolutely no reason to sign one, it only benefits the corporation that owns the nursing home or hospital because they know they will never have to expalin their conduct (or the profitability of their misconduct) to a jury.

DON'T SIGN ARBITRATION CLAUSES.

Now, back to our friend Charlie. For reasons too complicated to get into here, I predict he will lose his suit and I don't think it matters if he gets a trial or is forced to go to arbitration. It also appears his "comedy show" titled "My Violent Torpedo of Truth/Defeat Is Not an Option" appears to have bombed in Detroit. But no worries, he has twenty shows left to figure it out

Why Did This Huge Law Firm Fork Over $25 Million to the Franklin Mint.....?

Sun, 23 Jan 2011 08:00:00 EST

What do the Franklin Mint, a Princess and a huge law firm have in common? A lawsuit, of course!

Stewart and Lynda Resnick used to own the Franklin Mint, which is a creator and supplier of coins, diecast models, jewelry, collectible dolls and other novelties. According to the Wall Street Journal, "The Franklin Mint, which produced a commemorative plate, purse, and porcelain doll using [Princess Diana's] likeness after she was killed in a 1997 car crash in Paris. Manatt and IP partner Mark Lee — representing Diana’s estate and a memorial fund set up in her name — sued The Franklin Mint for trademark dilution and false advertising, claiming that their client’s likeness had been used without permission to market memorabilia.

A Los Angeles federal judge dismissed the case against the mInt in 2000, calling it “groundless” and “unreasonable,” and awarded the mint $2.3 million in legal fees. But the mint didn’t stop there. It sued Manatt, Lee, and their client for malicious prosecution in 2002, claiming that the litigation was an attempt to hurt the company’s Diana-related sales. According to AmLaw, the mint was particularly exercised over about a passage in Manatt’s complaint comparing the company to “vultures feeding on the dead.” Franklin Mint’s lawyers at Loeb & Loeb argued that such an allegation damaged their clients’ reputation.

Diana’s estate and charity trust fund settled in 2004 for $25 million. The Resnicks donated all of the money to charity. Manatt, however, continued to fight. It won at the lower-court level, lost the appeal, and lost an attempt to have the California Supreme Court take the case up. Ultimately, the firm settled for $25 million, which the Resnicks also say they’ll give to charity.

In a statement on behalf of firm CEO and managing partner William Quicksilver, Manatt said: “This settlement will not have an adverse impact on us, and Manatt is well positioned for growth moving forward. While we continue to believe in our legal position, it was in the firm’s best interest to settle this matter and put it behind us . . . . We are pleased that the settlement proceeds are going to charity.”

Said Stewart Resnick, in a statement:

“We were committed to seeing this through to the end to prove the point that lawyers must have higher ethical standards and can’t take advantage of companies solely to enrich themselves.”

Hans

Judge Holds Louisville Doctor In Contempt for Lying Under Oath

Wed, 12 Jan 2011 08:00:00 EST

Oddly enough, I just happened to have been in court several times when hearings were being conducted in a Louisville medical malpractice case involving a Louisville eye surgeon. As a local attorney, I took great interest in the case, especially when the subject of the doctor's alleged perjury arose. Apparently, when the doctor learned he might be sued by a former patient, he decided he would send the former patient clippings from the newspaper where doctors successfully sued lawyers for unsuccessfully suing the doctor. When asked about it in his depositon, the doctor lied (a bunch of times) and said he did not send the clippings to his patient. Judge Fred Cowan, a former Kentucky Attorney General, didn't take to well to the doctor's lies. Judge Cowan fined the doctor several thousand dollars and ruled the jury can be informed that the doctor lied under oath. Read the full story here:

hp

Fen Phen Lawyer Indicted....AGAIN

Tue, 11 Jan 2011 08:00:00 EST

We have followed the fen phen fiasco since day one and have written about the civil case as well as the previous criminal indictments against the lawyers. Well, one of them has been indicted over statements he made to his legal malpractice insurance company.

According to the Lexington Herald-Leader, "Disbarred lawyer Melbourne Mills Jr., who represented clients in a multimillion-dollar diet drug settlement, was indicted Tuesday on a fraudulent insurance acts charge by a Fayette County grand jury. The felony count stems from an incident on or about Aug. 11, 2003. The indictment alleges that Mills knew that a statement made to an insurer, board of claims or agent for the purpose of obtaining, renewing or replacing an insurance policy contained false, incomplete or misleading information Fayette Commonwealth's Attorney Ray Larson said he could not comment on the case. The name of the insurer, board of claims or agent was not listed in the indictment. Mills has been involved in a federal court case with Continental Casualty Co., which issued a liability policy to his firm and paid for his defense in a lawsuit against him by his former fen-phen clients. Senior U.S. District Judge Joseph Hood said in March that Mills committed "material misrepresentations or omissions of fact" in a 2003 application to the company. In 2006, a judge ruled that Mills and lawyers William Gallion and Shirley Cunningham had to pay $42 million to clients whom they had swindled in the diet drug settlement. Mills was acquitted of criminal charges in the case, but the state bar association voted to disbar him"

All of the above stems from an application for legal malpractice insurance Mills' completed and submitted to his insurance company during the fen-phen fiasco. According to Judge Hood, in a declaratory judgment action filed by Mill's insurance company, "Mills’s 2003 Application for insurance, which resulted in Continental issuing the Policy of insurance, contained misrepresentations or omissions which satisfy at least one of the three criteria found in KRS 304.14-110. When asked in question 4 of the 2003 Application if any attorney had been “disbarred, suspended, formally reprimanded or subject to any disciplinary inquiry, complaint or proceeding for any reason other than nonpayment of dues during the expiring policy period,” (emphasis added) Mills answered “NO.” Mills’s answer to question number 4 is clearly a misrepresentation or omission. Mills knew that a bar complaint had been filed against him in early 2002, and he admitted that as of the date he signed and certified the 2003 Application, the KBA’s investigation was ongoing. Not only was Mills aware that an investigation was ongoing, his attorney attended a hearing held by the KBA Inquiry Commission, which resulted in Mills being served with a subpoena duces tecum requesting records related to the Fen- Phen Action."

The Truth About the "Litigation Crisis"

Mon, 03 Jan 2011 08:00:00 EST

Here is a great explanation of why the insurance spin machine has gotten it so wrong and the real facts about the ligitation explosion.

South Florida Sun-Sentinel.com

Why should we trust insurance companies?

By Gary Farmer

January 2, 2011

Earlier this month, the insurance industry spin machine started up again. If you believe them, every woe in our state — from traffic in South Florida to the cold weather in the Panhandle — is somehow the result of lawsuits. Some even call Florida a "judicial hellhole," claiming that Florida can lower costs for consumers and create jobs simply by reducing lawsuits.

Well, ask yourself this one question: Why in the world would you trust anything your insurance company says? Here are the facts:

"Trial lawyer" lawsuits make up a mere fraction of lawsuits in Florida. In 2009, nearly 90 percent of all lawsuits were either business versus business suits or home foreclosures.

"Malpractice" lawsuits make up an even smaller fraction. In 2009, out of the 547,194 lawsuits filed in Florida, just 1,286 were related to "professional malpractice"— including medical malpractice. That's less than 0.4 percent of all civil court cases.

The percentage of "trial lawyer" cases is dropping. Over the last decade, the percentage of civil cases related to malpractice, auto accidents and product liability has shrunk as corporate litigation and foreclosures are skyrocketing.

Punitive Damages are very rare and for only the most egregious cases. In 1999, Florida enacted restrictions on punitive damages and capped the limits in most cases.

For example, they want to change Florida's laws to bailout auto manufacturers after known defects in their automobiles led to serious injuries. Currently, an injured driver can hold an out-of-state car manufacturer accountable for knowingly selling a car with defects that result in occupants being seriously injured and killed. Ever since Ford manufactured the Pinto automobile with a known defect that resulted in car fires that killed consumers, courts have provided an avenue for consumers to seek accountability. Allowing automobile manufacturers to escape accountability will lead to one thing — reduced safety and greater risk and danger of injury to you and me.

Perhaps the most outrageous proposal is the insurance industry's demand that we further restrict the rights their customers have when they act in bad faith. Small businesses and individuals buy liability insurance to protect themselves from the potential for a catastrophic lawsuit against them. But too often, when the worst happens, the insurance company fails to promptly settle the claim. Now the insurance customer — who could have been fully protected if the insurer had acted in good faith — ends up losing everything they have worked for because the insurance company did not act in good faith.

If the insurance company acts in bad faith in failing to settle these horrible claims when they should, who should pay that excess? The customer who supposedly bought insurance to protect themselves? Or the insurance company that acted in bad faithIf there is a lawsuit problem, it is because out-of-state corporations use our courts to fight with those they contract with, and the banks use them to foreclose on homes — not because consumers use the courts to protect their own rights when negligent behavior has caused harm to them or their family.

Don't allow a dishonest industry to manipulate the truth just to avoid accountability to consumers.

Gary Farmer is an officer with the Florida Justice Association and attorney in Broward County .

Is Karen Sypher Finally Going to Jail Over the Pitino Fiasco....

Wed, 22 Dec 2010 08:00:00 EST

Well, it appears that Karen Sypher may finally be running out of options. Judge Simpson has denied her new attorney's motion to force Simpson to recuse himself and appoint a special grand jury to hear her claims of "civil rights" violations against her and her family. This really should come as no surprise, despite all the crazy twists and turns this case has taken.

The Night Before Christmas (As Written by a Lawyer)

Mon, 20 Dec 2010 08:00:00 EST

THE NIGHT BEFORE CHRISTMAS in Legalese
(Author unknown)

Whereas, on or about the night prior to Christmas, there did occur at a certain improved piece of real property (hereinafter "the House") a general lack of stirring by all creatures therein, including, but not limited to a mouse.

A variety of foot apparel, e.g., stocking, socks, etc., had been affixed by and around the chimney in said House in the hope and/or belief that St. Nick a/k/a/ St. Nicholas a/k/a/ Santa Claus (hereinafter "Claus") would arrive at sometime thereafter. The minor residents, i.e. the children, of the aforementioned House were located in their individual beds and were engaged in nocturnal hallucinations, i.e. dreams, wherein vision of confectionery treats, including, but not limited to, candies, nuts and/or sugar plums, did dance, cavort and otherwise appear in said dreams.

Whereupon the party of the first part (sometimes hereinafter referred to as ("I"), being the joint-owner in fee simple of the House with the party of the second part (hereinafter "Mamma"), and said Mamma had retired for a sustained period of sleep. (At such time, the parties were clad in various forms of headgear, e.g., kerchief and cap.

Suddenly, and without prior notice or warning, there did occur upon the unimproved real property adjacent and appurtenant to said House, i.e., the lawn, a certain disruption of unknown nature, cause and/or circumstance. The party of the first part did immediately rush to a window in the House to investigate the cause of such disturbance.

At that time, the party of the first part did observe, with some degree of wonder and/or disbelief, a miniature sleigh (hereinafter "the Vehicle") being pulled and/or drawn very rapidly through the air by approximately eight (8) reindeer. The driver of the Vehicle appeared to be and in fact was, the previously referenced Claus.

Said Claus was providing specific direction, instruction and guidance to the approximately eight (8) reindeer and specifically identified the animal co-conspirators by name: Dasher, Dancer, Prancer, Vixen, Comet, Cupid, Donner and Blitzen (hereinafter "the Deer"). (Upon information and belief, it is further asserted that an additional co- conspirator named "Rudolph" may have been involved.)

The party of the first part witnessed Claus, the Vehicle and the Deer intentionally and willfully trespass upon the roofs of several residences located adjacent to and in the vicinity of the House, and noted that the Vehicle was heavily laden with packages, toys and other items of unknown origin or nature. Suddenly, without prior invitation or permission, either express or implied, the Vehicle arrived at the House, and Claus entered said House via the chimney.

Said Claus was clad in a red fur suit, which was partially covered with residue from the chimney, and he carried a large sack containing a portion of the aforementioned packages, toys, and other unknown items. He was smoking what appeared to be tobacco in a small pipe in blatant violation of local ordinances and health regulations.

Claus did not speak, but immediately began to fill the stocking of the minor children, which hung adjacent to the chimney, with toys and other small gifts. (Said items did not, however, constitute "gifts" to said minor pursuant to the applicable provisions of the U.S. Tax Code.)

Upon completion of such task, Claus touched the side of his nose and flew, rose and/or ascended up the chimney of the House to the roof where the Vehicle and Deer waited and/or served as "lookouts." Claus immediately departed for an unknown destination.

However, prior to the departure of the Vehicle, Deer and Claus from said House, the party of the first part did hear Claus state and/or exclaim: "Merry Christmas to all and to all a good night!" Or words to that effect.

Legal Malpractice Claims on The RIse

Sat, 11 Dec 2010 08:00:00 EST

As a lawyer and law firm handling legal malpractice claims, I found this recent article by the Insurance Law Journal very interesting. According to the Journal, legal malpractice claims (claims by clients against their former lawyers) are on the rise. The Journal speculates the reason has to do with more and more lawyers struggling to find business in the current economy and feeling the need to practice "door" law; meaning the feel the need to take any and every case that comes in the door. The problem with this is not every lawyer can handle every type of case. Plain and simple. I don't handle divorce cases, because I don't know how. I don't handle criminal cases, because I don't know how. Unfortunately, and I see this in my practice all the time, domestic relations lawyers and criminal lawyers far too often think they can handle a personal injury case. "How hard could it be" they ask themselves.
The answer is "very." Personal injury cases are filled with landmines that pose potential legal malpractice implications to lawyers unexperienced in this area. I consistently see clients that have gone to their traffic ticket lawyer or the lawyer that wrote their will with their personal injury case and he or she has missed the statute of limitations, or failed to get the defendant served, or missed a key piece of evidence, or failed to take into consideration the effect of insurance subrogation lien. Often times, I am unable to assist this clients with their current case because it has been mishandled so badly. Our only hope of making the client whole is to bring a claim against their former lawyer for legal malpractice.
What's more troubling is that it doesn't have to be this way. Most states allow lawyers to share fees in cases. This means that the divorce lawyer or traffice ticket lawyer can refer the case to an experienced personal injury lawyer to handle the case and share in any fees generated. It's a "win-win." The client gets the best represenation, the referring lawyer gets a portion of the fee and doesn't risk commiting malpractice or harming the client's case. Hopefully, although not likely, this article will entice lawyers to do the right thing.

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Trucking Company Involved In Fatal KY Accident Changes Name To Get Back on The Roads

Tue, 23 Nov 2010 08:00:00 EST

In March of this year a trucking company from Alabama was involved in a fatal semi-truck wreck near Munfordville, Kentucky. The I-65 crash killed 11 people.
Due to the large number of safety violations Hester, Inc had committed in the past, the government ordered the company to take all of its trucks off the highways until all defeciencies were corrected. Amazingly, it has now come to light that five days later, the trucking company changed its name and resumed operations under its new name, side stepping the order.

You can read more about it in the Courier-Journal.

hp

ps Be sure to download our Free Book, What The Insiders Don't Want You To Know About Semi Truck Wrecks

pps Be sure to watch our video explaining The Six Things You Must Know If You've Been involved in a Semi-Truck Wreck

Kentucky Nursing Homes....Still Having Problems

Tue, 12 Oct 2010 08:00:00 EST

Kentuckians for Nursing Home Reform investigated state nursing homes and the results were less than desirable. Of the 76 nursing homes the state of Kentucky investigated over a three month period, 34% showed poor performance and below-average results.

The inspections were conducted by the state Office of Inspector General according to the Cabinet for Health and Family Services and took place during the months of April, May and June of this year and found that nursing home deficiencies in Kentucky run from 0-28. According to the federal Centers for Medicare and Medicaid Services the average number of deficiencies in Kentucky is six, but the report showed 26 nursing homes in state with more than that with numbers ranging from 7 to 25.

On a lighter note, six nursing homes reported absolutely no deficiencies which show that it can be done. Regional Medical Center of Hopkins, Madisonville, Home of the Innocents in Louisville, Breckinridge Place in Morganfield, Windsor Gardens in Bardstown, Robertson County Health Care in Mt. Olivet and Tanbark Health Care Center of Lexington.

Founder of Kentuckians for Nursing Home Reform, Bernie Vonderheide said, "It is disturbing that 34 percent of the nursing homes inspected in this latest report, had so many deficiencies above the usual number. One deficiency is too much, and the residents are the big losers here. The public should demand better care. When will our government leaders act to protect these forgotten Kentuckians?"

It is important to be informed when it comes to choosing a nursing home facility for your loved ones. If you need help, feel free to request a copy of this special report, "Nursing Homes: What you absolutely, positively must know before choosing one"

A World Without Lawyers

Fri, 01 Oct 2010 08:00:00 EST

Lawyers get a bad rap. I am constantly reminded of how little respect lawyers get in our society. Most people fail to realize that without lawyers, society would dissolve into "mob rules." I recently had lunch with famed attorney Geoff Feiger who reminded me, that if doctors and engineers ceased to exist, it would be a very bad thing indeed. People would get sick and die from preventable diseases and minor injuries; however, society would still exist (although it would look more like the "Dark Ages." However, if lawyers ceased to exist, we would soon be thrust back into anarchy, were people took what they wanted by force and with no fear of consequence.
Anyway, I ran across this video that artistically explains the important role of lawyers in society. Enjoy: http://www.youtube.com/watch?v=3j6_S9lJ73o

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Kentucky Governor Orders Nursing Home Reform

Sat, 18 Sep 2010 08:00:00 EST

It's about time someone did something to improve the quality of care in Kentucky nursing homes. I handle nursing home neglect and abuse cases and am constantly frustrated by the complete disconnect between the state agencies and their inability to effect real change in a facility.

Today's Courier Journal indicated Gov. Beshear has finally done something that may offer some hope for improvement; however, we really need more drastic measures such as those offered by Attorney General Jack Conway.

Here is the article:

FRANKFORT, Ky. — Gov. Steve Beshear directed his administration Friday to immediately implement nearly two-dozen reforms aimed at combating nursing home abuse and neglect.

The recommendations are the result of a review of the state's handling of reports of abuse and neglect in nursing homes.

Beshear ordered the Cabinet for Health and Family Services to conduct the review after the Lexington Herald-Leader examined 107 citations issued by the agency over a three-year period in instances where a resident's life or safety has been endangered.

The newspaper found that only seven of the 107 cases of nursing home deaths or abuse were prosecuted as crimes and that police and coroners are rarely notified of nursing home deaths or serious injuries.

“This review will be an essential document to guide the many groups that have an interest in maintaining safe nursing homes, and to ensure that proper procedures and accountability are maintained when investigations are required for suspected cases of neglect or abuse,” Beshear said in a statement.

The citations reviewed included 18 deaths, 30 hospitalizations, five broken bones and two amputations that resulted from violations of state regulations, the newspaper reported. Thirteen residents were injured because of lapses by staff members, according to the citations.

Beshear asked cabinet Secretary Janie Miller to review state agencies' coordination with local prosecutors and law enforcement to handle the reports, the newspaper reported.

Representatives from the industry, law enforcement and victim advocates were involved in the review.

Miller said the review found, for example, that law enforcement officials sometimes weren't certain who to contact at the cabinet regarding abuse and neglect cases.

She said one of the recommendations to be implemented is the creation of regional Adult Protective Services teams, which will have more clear guidelines in working with law enforcement.

“That was identified as a significant improvement from the voices of law enforcement,” she said in an interview. “They get better at it, and we get better at communicating with them if we have just one or two people involved, rather than 10.”
Bernie Vonderheide, founder of Kentuckians for Nursing Home Reform, complimented Beshear and his administration for beginning to address the issue.

“We think that it's about time the governor of the commonwealth start making elder care a top priority,” he said.

Vonderheide, who said he had not reviewed the report, said he is glad to see a recommendation to revitalize an Elder Abuse Committee that is inactive.

Miller acknowledged the committee rarely meets and has done little to monitor nursing home abuse investigations, which it is charged with doing under state statute.

She said she doesn't know why the committee has been inactive since before she became cabinet secretary.

“This will be an important place where a lot of stakeholders can be involved in how those recommendations are implemented,” she said.

Miller said the review is the beginning of the process of reforming the way nursing home abuse and neglect cases are handled.

Attorney General Jack Conway, who participated in the process, recommended stiffer penalties for nursing home abuse and neglect and for failure to report abuse and neglect.

“We appreciate Gov. Beshear leading efforts to ensure the Cabinet for Health and Family Services is communicating and coordinating with other state agencies in order to more efficiently and effectively investigate elder abuse and neglect cases,” Conway said in a statement.

Although the state sends reports of the most serious nursing home regulatory violations to the attorney general's office, that office can prosecute only with the permission of local prosecutors.

And local prosecutors say they seldom hear about the cases.

Miller said the final report did not include Conway's recommendations because the legislature would have to amend state law. The report, she said, made recommendations that the cabinet could implement immediately.

“We're assuming that continued work will happen,” she said. “I don't know where that will take us at this point.

Tim Veno, president of the Kentucky Association of Homes and Services for the Aging, said in a statement that, “While instances of abuse and neglect in Kentucky's Long Term Care facilities are not the norm, even one instance of abuse is one too many.”

Reporter Stephenie Steitzer can be reached at (502) 875-5136.

Britney Spears' Bodyguard Files Sexual Harassment Suit Against Her

Fri, 10 Sep 2010 08:00:00 EST

Two days ago, a lawsuit was filed against Britney Spears in the Los Angeles County Superior Court. The suit was filed by Spears’ bodyguard, Fernando Flores, who alleges Britney sexually harassed him, as well as abused her children. Although this case concerns a celebrity, sexual harassment is something that can occur in any workplace. Since I am an attorney who handles sexual harassment and employment cases in my practice, I am interested in following this case.

The lawsuit alleges that Britney exposed herself to Mr. Flores and made sexual advances toward him. The compliant states that “the incident caused [Flores] shock and disgust.” Unrelated to the sexual harassment, the lawsuit also claims that Britney abused her two small children, Preston and Jayden. According to Flores, Britney asked him for his belt on one occasion and then “savagely hit the small child” with it. On another occasion, Flores alleges Britney fed both of her boys crabmeat, despite them having severe fish allergies. After they ate the crabmeat, they vomited, and Britney would not let her staff seek medical treatment for the boys, telling everyone to mind their own business.

Britney and her attorneys expect the suit will be dismissed. However, that decision is up to the courts in Los Angeles County. Whatever happens, this case will surely be interesting to many.

Associated Press Article Attributes Poor Care in Nursing Homes to Understaffing and Discusses 677 Million Dollar Verdict

Tue, 31 Aug 2010 08:00:00 EST

A recent associated press article discusses the largest jury verdict in the country this year; 677 million dollars. The case was a class action suit in Hamboldt County, California consisting of 32,000 patients at a California nursing home. As a lawyer who practices nursing home neglect and abuses cases I find this article of particular interest. Not only does the article address the large jury verdict but, more importantly, it addresses the reasons that poor care is often given in nursing homes.

The case began when residents of a California nursing home were receiving poor care. The daughter of one patient described finding her father soaked in urine. Not only can such neglect occur in nursing homes but also, injuries such as bed sores can be caused by a lack of turning the patients. As the article indicates, poor care is given in nursing homes because they are understaffed.

Understaffing in nursing homes means there are not enough nurses and aides to give proper care to each and every patient. California law requires 3.2 nursing hours per patient per day. However, the nursing home in this case did not meet that standard. Kentucky, despite years of lobbying, has no such minimum staffing requirements in place.

While there are also no federal requirements for the staffing of nursing homes, the federal recommendation is 4.1 nursing hours per patient per day. The understaffing is due to the fact that nursing homes are profit-driven companies. Being profit-driven means that nursing homes might be more focused on their bottom line than concerned with the care they give patients.

The nursing home in this case is challenging the 677 million dollar verdict. First, the nursing home asked for a mistrial for juror misconduct, but the court denied it. Second, the nursing home may appeal; however, they may not have the ability to appeal because they would be required to post 150% of the verdict as a bond which equals over one billion dollars.

Such a challenge, however, is not uncommon. In fact, some say that large verdicts are examples of litigation abuse. Such opinions form a theory that is referred to as tort reform. Tort reform would place caps on litigation or damages that injured persons could receive. Tort reform could make it harder not only to file a lawsuit, but to recover damages for injuries as well.

Be sure to download our book "Nursing Homes: What You Absolutely, Positively Must Know Before Choosing One"

And, see our video about nursing home abuse and neglect.

Louisville and Lexington Newspapers Reveal Why Patients Receive Poor Care in Nursing Homes

Fri, 27 Aug 2010 08:00:00 EST

This week, two articles in the Lexington Herald-Leader and the Louisville Courier Journal address problems with nursing homes in both Kentucky and Indiana. As a lawyer who handles nursing home neglect and negligence cases in Kentucky and Indiana, I find these articles to be especially interesting. Both articles address understaffing in nursing homes which leads to lack of care. As a result of being understaffed, residents are not turned as often as they should be which results in bed or pressure sores. Also, bad management of nursing homes by nursing home administrators can lead to the neglect of residents.

The nursing home industry is spending millions in political campaign contributions to lobby for laws which would limit their responsibilities and liabilities to their residents. In fact, the industry has given $1.8 million to Kentucky politicians in the last decade. These contributions and lobbying efforts mainly are geared toward opposing nursing home reform. Nursing home reform would place greater requirements on nursing homes and would provide better care to their residents.

Nursing home reform would place minimum staffing requirements on nursing homes based on their number of residents. This would ensure that enough staff was employed to give residents the level of care they need and deserve. As a result, the cases of residents who are injured, have bed sores, or are malnourished would decrease substantially.

Nursing home reform could greatly help the care residents received in Indiana nursing homes, since federal regulators rank Indiana’s nursing homes as among the lowest performing in the nation. According to the article in the Courier Journal, Indiana does not adequately discipline nursing home administrators for violations of nursing home policies and regulations. In the last five years 300 reports have been made by nursing home inspectors, who are required to report violations during inspections to Indiana’s Attorney General. However, the Attorney General has only brought six of those 300 complaints to the State Board of Health Facility Administrators .

Another problem is that administrators who are brought before the State Board face hardly any punishment. Basically, as long as they have appropriate policies in place they will not be disciplined. And, even if they are disciplined by the Board they can still go work at facility after facility and continue to neglect and give poor care to residents. Without serious consequences for their actions, administrators are likely to cut corners and continue to provide unsatisfactory care to residents.

As the articles suggest, one way to fix problems at nursing homes and provide better care is to place more requirements on nursing homes. Nursing homes are profit-driven companies and left to their own devices, they can cut corners and staffing to provide the minimum level of care. By requiring nursing homes be staffed based on their number of residents, each resident can get the care they deserve.

Be sure to download our book "Nursing Homes: What You Absolutely, Positively Must Know Before Choosing One"

And, see our video about nursing home abuse and neglect.

Kentucky Supreme Court Rules in Favor of Poppe Law Firm Client

Fri, 27 Aug 2010 08:00:00 EST

The Poppe Law Firm was pleased to receive a unanimous opinion from the Kentucky Supreme Court yesterday reversing a Kentucky Court of Appeals opinion. The legal malpractice case was dismissed right before trial becuase the trial court determined that the client's assignment of the proceeds from his legal malpractice case was against public policy. The Court of Appeals agreed with the trial court and affirmed the dismissal. The Poppe Law Firm filed a motion for discretionary review to the Supreme Court of Kentucky. Only a handful of case are accepted for review by the Supreme Court of Kentucky and usually they only decide issues of first impression in Kentucky. Even fewer cases are granted oral argument. The Court granted both to the Poppe Law Firm client. The Case was argued in June and the Court issued a lightening fast opinion in on August 26th (Court was not in session in July)
The Supreme Court agreed with the Poppe Law Firm that an invalid assignment of proceeds does not justify dismissing a case with prejudice and, instead, as long as the real-party-in interest brings the action, the suit should be allowed to proceed. This establishes the law in Kentucky and is a great victory for our client. We are very proud of the work we have done in this case and it feels wonderful to get this result for a very deserving client.

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ps Here is a link to one of the briefs we did in the trial court. This is not one of the appeal briefs.

Want Tort Reform Now? Here Is A Form That Will Give It To You!

Sat, 31 Jul 2010 08:00:00 EST

If you are one of those politicians or pundits constantly railing about the need for tort reform to protect doctors and hospitals, there is no need to wait for the government to pass tort reform. Here is a form that will allow you to accomplish the same thing for you and your family RIGHT NOW.

That's right, by signing this simple form, you can waive your and your family's rights to pursue a claim for malpractice against your healthcare provider in court and limit your recovery, regardless of how serious your injuries are.

So, if you are truly for tort reform, go ahead and sign it. I dare you.

hp

ps. Here is is again, just so you know I'm serious.

WHAS 11 News Interviews Hans Poppe About The Karen Sypher Extortion of Rick Pitino Trial.

Sat, 24 Jul 2010 08:00:00 EST

Recently, WHAS 11 sat down with me to discuss Karen Sypher's lawyers reasons for requesting a change of venue and his motion to strike the jury panel. Ms. Sypher's lawyer doesn't think she can get a fair trial here in Louisville because of all of the pre-trial publicity and because Coach Rick Pitino is so well-known in this community.

I explained that changes in venue are extremely rare and only happen when the court is convinced there has been a "circus-type" atmosphere surrounding the trial. I also explain that Ms. Sypher has the unusual benefit of a 30-page questionaire of all the panel members and three days of individual voir dire of each potential jury member.

I explained that I would be very surprised if Judge Simpson moved the trial or started jury selection over again. Following this interview, Judge Simpson denied the defenses motion to move the trial or strike the panel. The case is scheduled to start on Monday.

hp

ps another interesting development is that Ms. Sypher's attorney has served a subpoena on Coach Pitino's lawyer, Steve Pence, to testify at trial. Mr. Pence's lawyers have filed a motion to quash the subpoena, likely claiming attorney-client privilege.

Apple & ATT Might Have Some Big Problems Out in California...

Mon, 12 Jul 2010 08:00:00 EST

A California federal judge has allowed a case to go forward as a class action against Apple and AT&T over claims that Apple and AT&T has a secret deal to lock people into 5 year contracts with AT&T by making it the exclusive provider for the iphone. Apple and AT&T deny any such deal exists.
Generally, once a class action gets certified, the parites start looking for ways to resolve the case. We'll follow this one with interst. Here is the story from USA Today:

Judge OKs iPhone class action against Apple, AT&T

Posted 7/11/2010 8:15 PM ET

SAN JOSE, Calif. (AP) —
A federal judge says a monopoly abuse lawsuit against Apple Inc. and AT&T Inc.'s mobile phone unit can move forward as a class action. The lawsuit consolidates several filed by iPhone buyers starting in late 2007, a few months after the first generation of Apple's smart phone went on sale.

An amended complaint filed in June 2008 takes issue with Apple's practice of "locking" iPhones so they can only be used on AT&T's network, and its absolute control over what applications iPhone owners can and cannot install on the gadgets. The lawsuit also says Apple secretly made AT&T its exclusive iPhone partner in the U.S. for five years. Consumers agreed to two-year contracts with the Dallas-based wireless carrier when they purchased their phones, but were in effect locked into a five-year relationship with AT&T, the lawsuit argued.

The actions hurt competition and drove up prices for consumers, the lawsuit claims

Apple and AT&T have not commented on the terms of their deal. In its response to the complaint, Cupertino, California-based Apple said it did not hurt competition.

In court documents filed July 8, Judge James Ware of the U.S. District Court for the Northern District of California said parts of the lawsuit that deal with violations to antitrust law can continue as a class action. The class includes anyone who bought an iPhone with a two-year AT&T agreement since the device first went on sale in June 2007.

Apple has sold more than 50 million iPhones in the last three years. The company does not specify how many have gone to U.S. customers.

Ware dismissed other claims against Apple, among them allegations that the company broke laws when an update to the iPhone's operating software caused some phones to stop working and deleted programs that users had purchased.T

The lawsuit seeks an injunction to keep Apple from selling locked iPhones in the U.S. and from determining what iPhone programs people can install. It also seeks damages to cover legal fees and other costs.

Let's Put Senior Citizens in Jails and Put Criminals In Nursing Homes

Tue, 22 Jun 2010 08:00:00 EST

This way the seniors would have access to showers, hobbies,

and walks, they'd receive unlimited free prescriptions, dental

and medical treatment, wheel chairs etc. and they'd receive money instead of

paying it out.

They would have constant video monitoring, so they could be

helped instantly, if they fell, or needed assistance.

Bedding would be washed twice a week, and all clothing would be

ironed and returned to them.

A guard would check on them every 20 minutes, and bring their meals

and snacks to their cell. They would have family visits in a suite built for that purpose.

They would have access to a library, weight room, spiritual counselling, pool, and education,

simple clothing, shoes, slippers, P. J.'s and legal aid would be free, on request.

Private, secure rooms for all, with an exercise outdoor yard, with gardens.

Each senior could have a computer, television., radio, and daily phone calls.

There would be a board of directors, to hear complaints, and the guards

would have a code of conduct, that would be strictly adhered to.

The "criminals" would get cold food, be left all alone, and unsupervised.

Lights off at 8pm, and showers once a week.

Live in a tiny room, and pay $5000.00 per month and have no hope

of ever getting out. Justice for all.

KY Supreme Court Rules Widow Entitled to Benefits in Lexington Plane Crash

Mon, 21 Jun 2010 08:00:00 EST

On Thursday, June 17 the Kentucky Supreme Court ruled in Fortney v. Airtran Airlines that Sarah Fortney, the widow of and administratrix for the Estate of her late husband Clarence Fortney, is entitled to work-related benefits from her husband’s death in the tragic Comair Flight 191 crash at Bluegrass Airport on August 27, 2006.

Airtran employed Mr. Fortney at its hub in Atlanta, Georgia and Mr. Fortney commuted eight to ten times a month to the Atlanta hub from Lexington, where he chose to live to be close to family. Following his death his widow, Sarah Fortney, sought worker’s compensation benefits from Airtran.

After a lengthy appeals process and several reversals in both administrative court and the Kentucky Court of Appeals, the State Supreme Court ruled in Mrs. Fortney’s favor, stating that there is sufficient evidence to support Mrs. Fortney’s claim for worker’s compensation from Airtran in her husband’ death.

The issue before the court is whether Airtran is liable for Mr. Fortney as an employee while he commuted from Lexington to Atlanta onboard a Comair flight. Airtran argued that Mr. Fortney’s death falls under the “going and coming” rule, wherein an injury incurred while commuting between a worker's home and workplace is non-compensable because the risks taken while commuting are exactly the same as they are for the general public.

However, the court noted that Airtran incurs “deliberate and substantial payments for the expense of travel” for its employees to fly to their hub in Atlanta. More than 70% of Airtran’s pilots live outside of Georgia and many of them participate in an Airtran-backed program with the Transportation Security Administration (TSA) to provide free or reduced fare rates among all airline pilots on any airline’s flights.

The court ruled that Airtran’s participation in the TSA’s inter-airline reduced rate service for pilots is an inducement by Airtran to attract workers and encourages workers to fly on their commutes to work. Thus, Airtran is liable for its employees’ commutes as it advances an objective of Airtran—gaining interest from potential employees.

This raises liability issues when it comes to an employer making travel arrangements for an employee and whether the employer benefits from these arrangements and is therefore liable for any harm an employee may endure. Are government agencies, such as schools or public offices, liable for employees who receive public transportation vouchers because traffic reduction and timely commutes are objectives of the government? What about UPS, which has a large non-resident workforce in Louisville?

These and other questions will surely come up in the wake of the Kentucky Supreme Court’s decision in the Fortney case.

Ohio Supreme Court Rules Cops Can "Eyeball" Speeding Motorists

Mon, 21 Jun 2010 08:00:00 EST

In a decision with ramifications for many Kentucky drivers the Ohio Supreme Court on June 2^nd handed down a ruling that “a police officer’s unaided visual estimation of a driver’s speed is sufficient” in issuing a speeding citation, as long as the officer is “sufficiently trained and experienced in estimating speeds.”

Guesstimating, an art form usually left to casual conversation and events, has entered into the legal world in Ohio. As one CNN report put it, “Motorists in Ohio, beware: Speeding is in the eye of the beholder, especially when police are the ones guesstimating.”

The prospect of relying on law enforcement officials for verification of an offense is worrisome as it relinquishes the role of objective evidence being presented in what is a criminal matter, a fact that would be frightening in any other legal issue.

Moreover, the court’s claim that a police officer can be trained in estimating speed to the point where their citations are acceptable is doubtful. NASA physicist Paul Greenburg said in an AOL.com news article that “the ability of a human being to estimate the speed of a moving vehicle to one mile an hour is beyond absurd. I would say five miles an hour is probably absurd. What that exact number is on the average remains to be seen.”

With such broad ambiguities in evidence supporting a police officers’ ability to estimate vehicle speed, the court’s ruling seems highly dubious. Allowing a police officer’s mere guess to be admitted as evidence against a defendant runs contrary to the premise of “guilty until proven innocent” in American law.

Suddenly, an accusation of breaking the law also becomes evidence of breaking the law, which could lead to judges simply rubberstamping citations based solely off of a police officers unsubstantiated accusations.

While public servants such as police officers merit respect, entrusting incriminating powers to a police officer’s estimates without any evidentiary proof is a mockery of the justice system. Some police subjectivity is tolerable, such as aggressive driving citations where an officer perceives danger from a motorist’s actions in relation to road conditions, but guessing somebody’s speed without any relative measurement to go off of is intolerable.

Thankfully, a movement is being made in Columbus among lawmakers to reverse the court’s decision and require verifiable evidence such as radar and laser devices when issuing a speeding citation. Whatever the outcome is, when in the Buckeye State for the time being, stay under the limit.

Women Fight Over Gary Coleman's Estate--Watchu Talkin Bout?

Sun, 13 Jun 2010 08:00:00 EST

Child-hood actor Gary Coleman died last month. Most people know/assume Coleman was broke when he died. And perhaps he was. Coleman was picked up as the sponsor for Cash Call (a questionable loan company), after he called them to get a loan.

But here's what's happening now. Coleman's original will was written in 1999, about eight years before he married Shannon Price. Coleman met Price on the set of the movie "Church Ball." The couple married in 2007 and divorced in 2008, according to Coleman's attorney, Randy Kester. Kester says the two had an on-again, off-again relationship. Price was still living in the marital home when Coleman suffered his fatal fall and asked asked the Utah courts to determine the two had a common law marriage.

Coleman's Utah lawyer probated the 1999 will; however, a second will dated February 2, 2005 was discoverd andwas filed in a Provo, Utah court; the second will names Anna Gray as the executor and beneficiary of his entire estate. Gray was the CEO of an undisclosed company formed by Coleman several years ago and reportedly lived with Coleman until his marriage to Price.

But not so fast, Price has come forward will a third hand-written 2007will that Price claims leaves his estate solely to her

So, if Coleman was broke, why are two women fighting over who will control his estate?

The simple and morbid truth is that Coleman's identity may be more valuable after his death than while he was alive.

Shorty after Michael Jackson's passing I wrote about why his earning power would likely increase after his death. And I was correct. On March 15, 2010, his estate signed the biggest record deal in history, $250 million.

Every year Forbes Magazine compiles a list of the richest dead celebrities. Here is the 2009 list:

I Yves Saint Laurent
$350 million

II Rodgers & Hammerstein
$235 million

III Michael Jackson
$90 million

IV Elvis Presley
$55 million

V J.R.R. Tolkien
$50 million

VI Charles Schulz
$35 million

VII John Lennon
$15 million

VIII Dr. Seuss
$15 million

IX Albert Einstein
$10 million

X Michael Crichton
$9 million

XI Aaron Spelling
$8 million

XII Jimi Hendrix
$8 million

XIII Andy Warhol
$6 million

And, while I doubt we'll ever see Coleman on the list, he celebrity image still has earning power that can continue well into the future if managed properly.

hp

Hans To Argue Before Kentucky Supreme Court Wednesday.

Mon, 07 Jun 2010 08:00:00 EST

I will be arguing before the Kentucky Supreme Court on Wednesday, June 9, 2010. The case involves a legal malpractice case that was dismissed by the trial court because the plaintiff had assigned a portion of the potential legal malpractice proceeds to a third party. The Court of Appeals agreed and affirmed the dismissal. I filed a motion for discretionary review on behalf of my client and the Kentucky Supreme Court granted review (which is very rare).
The Court of Appeals placed Kentucky in the minority of states by holding that a plaintiff cannot pursue his legal malpractice case if he assigns any portion of the proceeds from the legal malpractice case to another person.

You can watch the oral arguments live Wednesday, June 9 at 9:00 am to the SCOKY website

hp

You Wont' Believe What This Trucker Was Doing When He Killed This Mother of Two....

Tue, 01 Jun 2010 08:00:00 EST

O.K., I've handled several semi-truck wreck cases, I'm a member of the American Association of Justice's Trucking Litigation Group, and I regularly talk about truck wreck cases with other lawyers that handle them routinely; however, I have never heard of a truck wreck that made me more angry than this one.

It seems Thomas M. Wallace was driving his tractor-trailer with no more than four hours of sleep over 27 hours and streaming pornography on his laptop computer when he crashed into the back of car driven by a 33-year old wife and mother of two.

Julie Stratton's disabled car was in the passing lane and was disabled after striking a deer. She called 911 and was waiting on assistance when Wallace and his Miller Transfer 18-wheeler slammed into her.

And, as if streaming pornography while driving a 30,000 lb truck wasn't enough, a State Police investigation led by Investigator John J. McCusker determined, with the help of E-ZPass records and GPS tracking of the tractor-trailer, that Wallace had been sleep-deprived at the time of the crash. That violated federal regulations that limit the hours commercial drivers can be behind the wheel. State police also found Wallace kept fictitious log books to mask his hours driving.

Mr. Wallace pleaded guilty to second degree manslaughter Wednesday.

Mrs. Stratton, in addition to being the mother of two young boys--ages 3 and 1, she also worked at a center working with special needs children.

I anticipate the Miller family will be filing suit against Wallace and Miller Transfer. And, if the trucking compnay, and its insurance company has any sense, they'll go to the family and do the right thing rather than making them go through litigation.

hp

California Judge in Toyotoa Case Picks Heavy Weight Plaintiffs Lawyers To Steer Litigation.

Sat, 15 May 2010 08:00:00 EST

U.S. District Judge James Selna appointed four attorneys to be lead counsel for two committees that deal primarily with the biggest issues facing Toyota — wrongful death claims, and claims filed by those who believe their cars have lost value because the Japanese automaker has recalled about 8 million vehicles.

Typically, in class actions like this one, multiple heavy hitter lawyers from different firms will file lawsuits in in different jurisdictions to jockey for position as lead class counsel, or as in cases this large, to be appointed to the plaintiffs' steering committee. This is the group of attorneys that make decisions about how the litigation will proceed and will act as a liason btween the court and the hundreds of other lawyers that have filed these suits.

The group of lawyers lobbying for lead spots was much larger than in most class actions, and the resulting steering committee is much larger as well. Accordgin to law.com, "Nearly 70 plaintiffs' attorneys spent Thursday in Selna's Santa Ana, Calif., courtroom attempting to convince him that there should be more members on the committees in charge of the litigation. Each argued for a leadership role in the MDL."

Judge Selna has selected several of the nation's most prominent class action lawyers to head up the litigation, including Steve Berman of Seattle who had taken on big tobacco and major securities class actions; Elizabeth Cabraser of San Francisco who has worked on lawsuits against the tobacco industry and the makers of silicone gel breast implants; Lewis "Mike" S. Eidson, a partner at Colson Hicks Eidson in Coral Gables, Fla.; Mark Lanier of The Lanier Law Firm in Houston; Richard D. McCune, a partner at McCuneWright in Redlands, Calif.; W. Daniel "Dee" Miles, a shareholder at Beasley, Allen, Crow, Methvin, Portis & Miles in Montgomery, Ala.; Brian Panish, a partner at Panish, Shea & Boyle in Los Angeles; Hunter Shkolnik, a partner at Rheingold, Valet, Rheingold, Shkolnik & McCartney in New York; and Donald H. Slavik, a partner at Milwaukee's Habush Habush & Rottier.

The will be a heavyweight battle on all fronts and it will be interesting legal drama for sure.

hp

Study About Kentucky Court System is Bogus

Sat, 24 Apr 2010 08:00:00 EST

My friend recently wrote the following editorial that appeared in the Lexington Herald Leader. I echo her sentiments entirely.

Study skews view of courts

By Maresa Fawns

A recent U.S. Chamber of Commerce study is attempting to cause a stir in some parts of the country over what it calls the national lawsuit climate. It ranks each state based on a dubious set of factors for how friendly a state's legal system is for business.

The report is short on facts and credibility. And even more concerning is the lack of accountability it promotes — the same lack of accountability that pushed our nation into one of the worst economic messes in history.

The annual lawsuit climate rankings by the Institute of Legal Reform, a branch of the U.S. Chamber of Commerce, rely only on the opinions of corporate defense attorneys who stand to profit when their corporations are shielded from those they have harmed through negligent behavior.

Corporations represented by the Chamber, such as AIG, the insurance industry and pharmaceutical companies, have gone to great lengths to portray our nation's civil justice system as unfair to them and at the same time wreaking havoc on our nation's economy.

This study is yet another tool in their PR campaign.

This year's study ranks Kentucky 40th in the nation in terms of how "fair" its legal system is for business, yet the study itself is the most blatantly unfair form of spin doctoring one can imagine.

For example, if you read a study showing that Duke University was the most popular sports team in Kentucky, would it affect your opinion if you knew only 10 people had been surveyed, and they were all Duke alumni?

In this survey, only those people who stand to gain from eliminating the protections of our civil justice system were asked whether they thought it should be limited. So you can guess their answers.

Aside from the flawed methodology, those promoting this study have caused so much harm to our nation's economy.

They say they are promoting small business, but in reality, companies like AIG — which alone has given the U.S. Chamber $23 million — are pushing for less accountability through our courts.

That is disturbing since it was their own lack of accountability that got them, and consequently our nation, in so much trouble.

Kentucky's civil justice system should be a fair and balanced way of addressing negligent behavior while encouraging a strong, ethical and accountable business community.

The legal and business community should not be at odds, but instead should be seen as allies. By serving as a watchdog against negligent and bad business behavior, good businesses can thrive and grow Kentucky's economy.

Kentuckians should see this and similar reports for what they truly are: fraudulent efforts by billion-dollar corporations to tilt the table in their favor at the expense of consumers.

If they really want to create a more thriving business community, may we suggest they start by cutting back on their million dollar bonuses and instead invest that money in creating good, safe jobs in states like Kentucky that need them.

Maresa Fawns is executive director of the Kentucky Justice Association, a statewide membership organization comprised mostly of trial lawyers.

Trucking Company Involved in Second Worst Wreck In Kentucky History Has Poor Safety Record.

Sun, 11 Apr 2010 08:00:00 EST

A fatal Kentucky accident put semi trucks on the front page news of Louisville’s Courier Journal newspaper. After a wreck between a semi and a passenger van left 11 dead, reporters began to dig deeper into truck accidents and found some unsettling facts.

The springboard of the reports resulted from a serious accident that occurred in the early morning hours of March 26^th. A large Mennonite family and other close friends were traveling to a wedding when their van was hit head on by a tractor trailer that had broken through the cable barriers at the median across I-65. According to the article, this wreck was one of the deadliest in Kentucky since the May 14, 1988 crash in Carroll County between a bus full of my classmates from North Hardin and a drunk driver.

The National Transportation Safety Board (NTSB) created a six-person investigation team to uncover more details of this wreck. They have yet to determine an exact cause of the accident or a reason why the truck veered off course. Days later, the trucker was identified by the Courier-Journal as Kenneth Laymon who drove for Alabama based company, Hester, Inc.

According to federal reports cited in a later Courier Journal article, “Large trucks in Kentucky account for a disproportionate share of the state's fatal crashes…” The Kentucky State Police records show that in 2008, trucks made up 4.6 percent of the state's registered vehicles but unfortunately a disproportionate 8.9 percent of its tragic accidents. Even more disturbing is that accident statistics prove similar nationwide.

Things are being done to try to combat the problem. Recent legislation disallowed truckers to text while driving and a new federal regulation will require trucking companies that repeatedly violate driver time limits to install electronic recorders that track how long truckers spend behind the wheel according to an Andrew Wolfson article. Transportation Secretary Ray LaHood sees the regulation as a way of reducing the number of accidents caused by sleeping drivers. It is suspected, though not confirmed, that the lack of brake marks could indicate dozing off could have been the cause behind the Mennonite crash. The problem however is that according to the Federal Motor Carrier Safety Administration, recorders will only be required for companies flagged during on-site reviews but only about 2 percent or less of the 750,000 U.S. trucking companies are reviewed on-site throughout the year.

Thanks to the American Association for Justice (AAJ) citizens can do a search state by state of trucking companies and their violations through the Violations Database.

ps be sure to download or FREE E-Book "What The Insiders Don't Want You To Know About Semi-Truck Wrecks."

Who Owns March Madness and the Sweet Sixteen? Hint, Kentucky and Illinois have something to say about it!

Sun, 14 Mar 2010 08:00:00 EST

My Louisville Cardinals got bounced in the first round of the Big East Tournament by the Cincinnati Bearcats so, while the Cardinals will likely make the tournament, their likely low seeding will ensure they have their work cut out for them in the NCAA Tournament.

Here in Kentucky we take basketball seriously, and March Madness is (second to Derby) our favorite time of year. Illinois takes basketball seriously, too (four Final Fours). But what you basketabll lovers may not know is that Kentucky and Indiana both squared off with the NCAA over the use of two terms surrounding The Big Dance.

Let's start with some background. The NCAA has trademarked the terms March Madness, Final Four, The Big Dance, Elite Eight, Final Four, and a ton of others you may or may not have heard of.

According to the Slate "Every year, the NCAA sends hundreds of cease and desist letters to websites, bars and casinos that use one or more of the NCAA's trademarked slogans without the NCAA's permission. The NCAA has to protect its trademarks to maintain their value. Letting any business offer an "Elite Eight Special," for example, hurts the association's ability to get top dollar from official sponsors, lawyers say. That means allowing no posters on doors of casinos inviting people to March Madness gambling, no Internet ads luring people to websites where they can buy unauthorized March Madness gear and no March Madness Web banners trying to get people to bars or events that aren't NCAA sponsors.

The phrase March Madness can be traced back to an Illinois' statewide high-school basketball tournament, which began in 1908. In 1939, an official with the Illinois High School Association, Henry V. Porter, penned an article called "March Madness" for the organization's in-house magazine. "A little March madness may complement and contribute to sanity and help keep society on an even keel," he wrote. Three years later, he followed up with a poem, "Basketball Ides of March," which read in part: "A sharp-shooting mite is king tonight/ The Madness of March is running. "The phrase was confined to Illinois high-school ball until 1982, when CBS broadcaster (and ex-Chicago Daily News sportswriter) Brent Musburger used it during his network's NCAA tournament coverage. The IHSA, meanwhile, applied to trademark "March Madness" in 1989. The NCAA and IHSA clashed in 1996, when the IHSA sued to stop GTE, an NCAA corporate partner, from distributing a CD-ROM game bearing the March Madness title. The NCAA contended that it had a common-law trademark on the phrase and was thus allowed to license it at will. The 7^th Circuit Court sided with the NCAA, but its ruling was vague enough to open the door for future litigation. Rather than endure more rounds in court, the two sides agreed to form the March Madness Athletic Association, a joint holding company. The IHSA controls the name on the high-school level, while the NCAA has a perpetual license to use the phrase in connection with its (much larger) collegiate tournament. A similar clash occurred in the late 1990s over "Sweet 16," tourney slang for the third round. CBS commentators started using the phrase in the late 1980s, after the tournament field expanded from 53 to 64 teams. Unfortunately for the NCAA, the phrase (using both "16" and "Sixteen") was trademarked by the Kentucky High School Athletic Association in 1988, as a handle for its annual championship tournament. Perhaps mindful of the March Madness precedent, however, the KHSAA chose to bargain with the NCAA rather than litigate. The two sides struck a deal similar to the one between the IHSA and the NCAA, splitting control along scholastic-collegiate lines. (The NCAA also owns the trademark to "Elite Eight," though the exact origins of that phrase are unclear.)

There are some high-school basketball purists who insist that the phrase "Final Four" was first used in connection with Indiana's legendary annual tournament (which inspired the film Hoosiers). But the official NCAA story is that "Final Four" was coined by a Cleveland Plain Dealer sportswriter, Ed Chay. In a 1975 article for the Official Collegiate Basketball Guide, Chay wrote that Al McGuire's Marquette squad "was one of the final four" in the previous year's tournament. Something about the phrase struck a chord with the NCAA's marketing folks, and they started capitalizing it as "Final Four" in 1978. It is, of course, now trademarked. (College hockey is stuck with the nickname "Frozen Four" for its national semifinals.) The origin of "Big Dance" is seemingly lost to history, at least in terms of who first used it as a synonym for March Madness. Nevertheless, the NCAA trademarked the phrase in 2000."

So, now you know....

Hans

The Tort Reform Myth Explained....

Sat, 06 Mar 2010 08:00:00 EST

Below is Andrew Cohen's insightful piece in the Atlantic....

Tort Reform Is Anti-Democratic (And Ingeniously Marketed)

Feb 10 2010, 9:52 AM ET

If President Barack Obama has to hand his adversaries a bauble in order to achieve success with health care reform, it might as well be the misnomer commonly known as "tort reform." The ends of providing insurance for millions of uninsured Americans, never mind whatever good it might do for the rest of us, is worth the means of giving Corporate America yet another legally-sanctified level of protection against the wailing interests of its customers, consumers, patients, and just plain innocent bystanders.

But let's not kid each other any longer. As we brace ourselves for yet another round of wrangling over the tail and not the dog, let's all stipulate that "tort reform" is one of the most blatantly anti-democrat concepts to have hit the legal system in the past century. It takes control over damage awards in many civil cases away from local judges and juries and gives them to state politicians, who often are just shills for their corporate campaign contributors and lobbyists. It protects corporations from punishment for their worst excesses. It diminishes good incentives for corporate carefulness and increases bad incentives for shoddy work and services.

"Tort reform is little more than a scam by an unpopular minority (corporations) against an enormous majority (anyone who is eligible to serve on a jury or who ever already has)." Wouldn't it be great if the President forced those words out of the mouth of the Chamber of Commerce president in exchange for even friendlier litigation rules for Big Business as it confronts changes to our national approach to health care?

I don't use the word "scam" lightly above. Supporters of tort reform, invariably corporatists and others who believe in this self-defeating supply-side notion of justice, have scammed or otherwise brainwashed millions of Americans into thinking that tort reform will save them from despicable "trial lawyers," a convenient target group in this ever-litigious world. But no 'trial attorney" ever went into the jury room and voted for a large verdict against a greedy corporation which purposely hid health risks from its customers. No "trial judge" ever put a gun to a foreperson's head and made that man or woman sign off on a big reward against an environmental polluter or tobacco company or maker of unsafe toys.

Instead, these verdicts came from jurors, one of the justice system's--one of all of governments'--few remaining unassailable cogs. Each time a jury awards a large sum to a plaintiff against a negligent defendant, it's a statement from jurors that the sort of conduct alleged and proven is worthy of punishment by the community. Sometimes, this is the only time in the lives of these people, these jurors, when they will have such an extraordinary say about the events of their time and place. Sometimes they are right. Sometimes they are wrong. But at least in these circumstances they make a difference based solely upon the fact that they are residents of a particular venue.

Make no mistake--the "reform" in "tort reform" is about eliminating or reducing the ability of trial juries to act as levelers of the playing field; as avengers of otherwise toothless victims; as the voice of a community in meting out justice. It is about helping corporations before individuals; about the bottom line and not the bottom rung. Alas, many of the same folks who tout individualism and freedom and liberty against government control evidently have no qualms about using support for tort reform as their ticket to worship at the Altar of corporate control.

The reason the topic is again in the headlines is because opponents of health care reform evidently don't have anything better to argue about in their efforts to stop passage of the pending legislation. Fine. The President and his fellow Democrats should concede on tort reform. And at the same time, he should figure out a way to track whether reductions in jury awards, and concomitant decreases in the costs of malpractice insurance, reduce the ultimate cost to consumers of health care and at the same time generate better quality of service.

Of course, we all know what the answers to those questions will be. Which now that I think about it is another thing we ought to be honest about.

Don't Want To Get Sick? Don't Go Here....(hint, it's the last place you'd guess)

Fri, 05 Mar 2010 08:00:00 EST

People living in Louisville, Kentucky will likely remember the hundred lawsuits filed against Jewish Hospital alleging people contracted MRSA due to unsanitary conditions. And you'll probably recall that the well-known Louisville medical malpractice lawyers ending up dismissing all of those suits and that Jewish counter-sued the lawyers for malicious prosecution. Ultimately, Jewish was unable to prove the lawyers did anything wrong and Jewish dismissed the suit against the two lawyers.

Despite the inability of those lawyers to successfully pursue those lawsuits against Jewish, hosptial acquired illnesses are a serious problem. Estimates are hospital-acquired illnesses cost the United States hundreds of thousands of dollars each year according to a New York Daily News article.

A study reported by Reuters found that roughly 48,000 patients die each year from pneumonia or blood poisoning contracted during hospital stays. According to the Center for Disease Dynamics, Economics and Policy at Resources for the Future in Washington, D.C., certain hospital-acquired illnesses added up to 2.3 million extra days patients spent in hospitals costing $8.1 billion in 2006 alone.

Ramanan Laxminarayan of Resources for the Future believes many of these cases “could have been avoided with better infection control in hospitals.” Laxminarayan and his colleagues wrote to the Archives of Internal Medicine that the blood infection sepsis killed a whole one-fifth of patients infected after surgery. Their research shows that between 1998 and 2006, patients who contracted sepsis after surgeries stayed an average of 11 days longer at a cost of around $32,900 per patient. Even more draining were pneumonia patients who stayed an additional two weeks longer costing $46,400 per patient, 11 percent of whom died.

Anup Malani of the University of Chicago who worked on the study stated the tragedy of these deaths, “In some cases, relatively healthy people check into the hospital for routine surgery. They develop sepsis because of a lapse in infection control and they can die.” Researchers estimate around 1.7 million healthcare-associated infections are diagnosted each year and urge the importance of handwashing, hygiene and screening patients to prevent infection.

One more reason not to get sick....

hans

Drunk Drivers Get Locked Out....

Tue, 02 Mar 2010 08:00:00 EST

As a lawyer that has handled several cases for people injured in car wrecks on Kentucky roads caused by drunk drivers, I applaude our legislatures recent pro-active legislation. The Kentucky House of Representatives is in favor of new legislation that will create new barriers to drunk driving. According to Deborah Yetter and Joseph Gerth in a Louisville Courier Journal article, legislators unanimously approved House Bill 58 which is hoping to make drunk driving more difficult.

The bill was sponsored by Rep. Dennis Keene, D-Wilder, after his daughter encountered a head-on crash with a drunken driver just before her high school graduation. House Bill 58, if passed, “will require the use of an ignition lock to prevent individuals convicted of drunken driving from being able to start their cars if they’ve been drinking” said Yetter and Gerth.

Keene reported about 200 people were killed in Kentucky alone with many more reported injuries due to drunk driving wrecks in 2008. This bill alters the current law which allows judges to order that these devices be put in the cars of individuals after they have received at least two DUI convictions. Mothers Against Drunk Driving reported the current law rarely saw action and see this proposed bill as a vast improvement since it will require installation of devices for all offenders.

Kentucky will join 12 other states to require the use of these devices if the bill gets passed by the Senate. Previously in similar legislation the Senate approved Senate Bill 144 which allows any driver with any amount of a controlled substance in their blood stream to be charged with a crime. Sen. Ray Jones, D-Pikeville, sponsored the bill saying that it would make it easier to prosecute drivers who are driving while abusing prescription drugs. But Sen. Kathy Stein, D-Lexington, called the bill “unconstitutional” because it placed the burden of proof on the defendant. Regardless, SB 114 passed 34-2 and is headed to the House.

hans

Ohio Doctors Get Immunity From Malpractice Suits

Mon, 01 Mar 2010 08:00:00 EST

Ohio physicians may have just gotten some big help when it comes to lawsuits. According to a WCPO Cincinnati report, the Ohio Supreme Court has passed new legislation shifting the cost of malpractice judgments from doctors’ insurers to the taxpayers.

What does this mean for patients? In some cases your private doctor can make a serious medical mistake and you can never sue them.

Called the “Theobald ruling," this legislation stems from the original case Theobald v. Board of County Commissioners of Hamilton County, Ohio. 11 years ago, Keith Theobald was involved in a high impact car wreck which led to the truck flipping across all lanes of traffic and crashing into a stand of trees. When Theobald was found it was discovered he was paralyzed from the chest down. Shortly after his accident, doctors recommended surgery to improve his condition but when Theobald awoke he found that he was still paralyzed, blind and now without the use of his arms.

So why weren’t the doctors liable? They had immunity from all malpractice claims because they had students in the room with them. According to WCPO reporter Hagit Limor, “In the Theobald case, the Ohio Supreme Court ruled that doctors who sign with a state university like the University of Cincinnati to let medical students learn from them, even if that just mean one student walking in the room for a second, now are considered state employees. As such, they get immunity if anything goes wrong on the job, even in their private practices.”

University of Cincinnati released a statement saying the following: “It is important to keep in mind that the law in question is part of the Ohio Revised Code (section 9.86) that has been in existence since 1980. As a state institution, we must follow the laws of the state of Ohio.”

Fortunately for the victims of medical negligence in Kentucky, we do not have a similar law....yet. While the University of Kentucky Chandler Medical Center has sovereign immunity from suits (you have to take your case to the Board of Claims and cannot recover pain and suffering), private physicians are still responsbile for their negligence at both UK and the University of Louisville Hospital (which does not have immunity).

hans

PETA Drops Plan To Use Tiger On Controversial Billboard

Sun, 28 Feb 2010 08:00:00 EST

Recently, I posted about sponsors dropping Tiger Woods and whether sponsors may sue him for breach of contract. Recently, PETA announced it planned to put up a billboard using Tiger's and encouraging peope to spay or neuter their pets. According to the Associated Press, PETA has nixed the plan after talking to their lawyers. The story is below

hans

PETA won't use Woods image after talk with lawyer

FORT LAUDERDALE (AP) — The animal rights group People for the Ethical Treatment of Animals has nixed a plan to use Tiger Woods' image on a billboard urging people to spay and neuter their pets.

PETA previously announced it would erect a billboard in Windermere — near Woods' home — with his picture and the words: "Too much sex can be a bad thing ... Always spay or neuter!"

The group, which is known for edgy campaigns, says it decided to put the Woods billboard on hold after talking with the golfer's attorneys.

PETA wouldn't say whether Woods' attorneys threatened to sue.

Instead of Woods, the ad will feature South Carolina Governor Mark Sanford, whose widely known dalliances have also made frequent headlines.

Toyota Accelerator Problem May Have Caused Car Wreck That Led To Criminal Conviction

Sat, 27 Feb 2010 08:00:00 EST

Koua Fong Lee insisted he had done everything he could to stop the car. A jury did not believe him and a judge sentenced him to eight years for causing a car crash that killed three people.

Lee was driving a 1996 Toyota Camry that suddenly shot up an interstate ramp, rear-ending another automobile, an Oldsmobile carrying three people. Two died at the scene and one was paralyzed and died shortly after Lee's conviction. Police estimated Lee's car was traveling between 70 and 90 mph.

Lee, who is of Hmong decent, was a recent immigrant and had just received his license. The prosecution argued Lee must have mistakely hit the accelerator instead of the brakes. Lee argued his brakes failed, but a brake inspection revealed no defects. Now, because of the rapdily spreading Toyotoa accelerator problem, Lee's case is being given a second look. I suspect many other cases will be given a second look as well.

The families of the people who died in the tragic car wreck are considering hiring a lawyer and bringing a lawsuit against Toyota if it is determined to have a faulty accelerator. If Toyota made a defective product that injures someone, they can be sued for "products liability." Several similar suits against Toyota have been filed around the country, including some here in Kentucky.

Toyota executives have testifed before Congress and have made admissions that could be used against them in these lawsuits. And while "Toyota CEO Akio Toyoda says he takes full responsibility for any safety problems in Toyota vehicles, and pledges to renew the company's commitment to quality..." We'll see if Toyota accepts responsibility in the lawsuits. I predict they won't.

hans

Can The Tobacco Companies Get Any More Evil.....

Wed, 27 Jan 2010 08:00:00 EST

It always seems that everyone wants a piece of big tobacco companies but it seems that the state of Florida may have finally gotten behind them. According to Jordana Mishory of the Daily Business Review, the newest Big Tobacco Strategy is putting the hurt on potential plaintiffs. The article was featured in the Kentucky Justice Association’s weekly clips.

According to Florida law, “plaintiffs who obtain a significantly smaller judgment than a rejected settlement offer must pay the other side’s attorney fees.” Particularly in Florida, but also around the country tobacco companies have been offering settlement amounts as low as $500 in wrongful death and negligence cases.

Fear on the side of the potential plaintiffs of having to pay opposing attorney fees has caused numerous people to drop tobacco lawsuits. Such was the case with Jerome Cohen of Fort Lauderdale. According to Cohen’s attorney, his client, who suffers from lung cancer, dropped the case because of medical reasons. But Philip Morris USA parent company Altria Group Inc. said the settlement was to avoid paying company legal fees in the case of a loss at trial. Regardless of the reason, Cohen ended up with a mere $1,000 settlement. Two other Florida plaintiffs had to pay $100,000 and $30,000 after losing a trial recently.

Altria and other tobacco companies contend that the majority of cases against them are either ill prepared or flawed and in many cases believe that the small settlement amounts they offer are equivalent to what the claims are essentially worth.

hans

Will Advertisers Sue Tiger Woods...

Sun, 13 Dec 2009 08:00:00 EST

So, everyone is talking about Tiger Woods, his marriage, and his relationships with other women. But, what very few people seem to be talking about is his lucrative endorsements and whether any of them will drop him, or worse, sue him based on the tarnishment of his image.
As a business litigation attorney, I can't help but think about all of the potential claims companies may have against Tiger (even Saturday Night Live got in on the joke this weekend). While some endorsement contratcs may have morals clauses, others may not; however, that doesn't mean they can't still get out of those contracts. I think a strong argument can be made that Tiger's announcement today that he is taking an "indefinite" leave from the game of golf, coupled with the image problem created by his "infidelity" makes for a strong argument that there has been a material change in the relationship that should justify a novation of the contracts at the very least. A really smart lawyer (since even this Louisville lawyer can figure this one out) can argue that the sponsors business may actually be damaged by being associated with Tiger and, as a result, they may be entitled to a refund.

Hans

ps At the time I am writing this, it appears Gillette is backing away from Tiger.

We Reveal Which Kentucky Nursing Home Ranked 2nd Worst In Nation....

Sun, 06 Dec 2009 08:00:00 EST

Often overshadowed by accident and sudden injury cases, though no less important, is the issue of nursing home negligence. There are only a few personal injury attorneys in Kentucky who handle nursing home abuse and neglect cases but recent information from institutions like the Kentuckians for Nursing Home Reform shows this state has serious problems when it comes to elderly care.

A December 2^nd Lexington Herald-Leader article reports on a Richmond, Kentucky nursing home that currently ranks as the second worst in the nation. Madison Manor was the center of controversy in September 2008 after the family of the late Armeda Thomas hid a video camera in her room to find out why she had dozens of bruises. The tape showed nursing assistants physically abusing and taunting Thomas and failing to feed and clean her. Nurses' aides Jaclyn Dawn VanWinkle, Amanda G. Sallee and Valerie Lamb were indicted and charged with abuse.

Last month, a similar Herald-Leader article reported that 10 Kentucky nursing homes were among the nation’s worst. According to the U.S. Government Accountability Office (GAO), only 15 states had more poorly performing nursing homes than Kentucky. Madison Manor is unfortunately not the only under performing nursing home in the state and falls in line with hundreds of other facilities around the country.

Earlier this year we revealed the 40 Kentucky nursing homes that were determined by Medicare to need “Significant Improvement.” Here are a few tips from MSNBC to keep in mind when choosing a nursing home:

Don't depend only on the federal Web site.
Get the names of local facilities.
Contact your local ombudsman (a state government official employed to investigate nursing home complaints)
Consult third-party reports to winnow out bad facilities.
Check the home's ownership.
Visit the homes incognito.
Read each home's state inspection survey.
Visit the homes again.
Ask about top-level turnover.

ps. Don’t forget to Download our fee publication “Nursing Homes: What You Absolutely Positively Must Know Before Choosing One.”

Legal Malpractice--How Your Laywer Can Stick it To You Again....

Fri, 06 Nov 2009 08:00:00 EST

One major issue that arises in many legal malpractice cases is whether the client can recover damages from the lawyer in a legal malpractice case if the damages were not collectible (or questionable) in the underlying case. Here is an example: Mr. Drunk Driver crashes into Mr. Innocent. Mr. Drunk Driver doesn’t have any insurance to pay for Mr. Innocent’s injuries, nor does Mr. Drunk Driver have money or assets. Mr. Innocent finds a TV advertising lawyer that promises to get him a quick settlement and keep him out of court. When Mr. Lawyer learns that Mr. Drunk Driver doesn’t have any insurance, he doesn’t do much to pursue Mr. Innocent’s case. Unfortunately, Mr. Lawyer sits on the case too long and the statute of limitations passes. It’s now too late to file a lawsuit against Mr. Drunk Driver. Mr. Innocent decides to sue Mr. Lawyer for legal malpractice. Mr. Lawyer decides to defend by arguing that Mr. Innocent’s case is worthless because Mr. Drunk Driver was uncollectible. Meaning that if Mr. Innocent couldn’t have collected from Mr. Drunk Driver (because he is poor and uninsured), then Mr. Innocent can’t collect from Mr. Lawyer (because the value of the legal malpractice case is only as good as the underlying case). The Texas Supreme Court recently stirred the pot and weighed in on these issues in AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P. v. NATIONAL DEVELOPMENT AND RESEARCH CORPORATION, 2009 WL 3494978, 13 (Tex. 2009). The Texas Court first addresses the issue of recoverability. The specific question in the case was when collectability was to be determined. The malpracticing attorney argues that the determination of whether the damages were collectible should be made at the time the underlying judgment is entered, not at the time the suit is originally filed, as argued by the Plaintiff. The Court agrees with the malpracticing attorney that the determination of whether damages awarded in the underlying suit were actually collectible should be made at the time the judgment is entered. This was a blow to the Plaintiff as the entity from which the fees were to be recovered was in a much worse financial position at the time the judgement was entered than it was when the suit was originally filed. The Court also addresses the issue of the recoverability of attorney’s fees. The Court holds that fees paid to the defendant attorney in the underlying suit are recoverable stating, "We see little difference between damages measured by the amount the malpractice plaintiff would have, but did not, recover and collect in an underlying suit and damages measured by attorney’s fees it paid for representation in the underlying suit, if it was the defendants attorney’s negligence that proximately caused the fees. In both instances, the attorney’s negligence caused identifiable economic harm to the malpractice plaintiff. The better rule, and the rule we adopt, is that a malpractice plaintiff may recover damages for attorney’s fees paid in the underlying case to the extent the fees were proximately caused by the defendant attorney’s negligence." The Akin Court’s ruling on collectability and attorneys fees may have serious implications for Plaintiffs seeking to be made whole. Specifically, the effects of determining the collectability of a judgment at the time the judgment is entered rather than when the suit is filed are case and fact specific but could result in Plaintiffs recovering damages or being left holding the bag. Hans ps. Kentucky, and most other states, have not ruled on the issue of collectibility in the underlyhing case.

Louisville Bat Maker Hit With $850k Verdict

Thu, 05 Nov 2009 08:00:00 EST

WAVE 3 announced the verdict on October 28^th regarding the case against the maker of Louisville Slugger bats, Hillerich & Bradsby. Guilty. The Lewis & Clark County District Court in Helena, Montana found H & B guilty for failing to place a warning label on aluminum bats the company produced which played a role in the death of 18-year-old Brandon Patch in 2003.

Judge Kathy Seeley ruled in favor of the Patch family and ordered H & B pay $850,000 in damages. In 2003, Brandon Patch was struck in the head with a baseball coming off of an H & B aluminum bat while pitching in an American Legion baseball game. Attorneys for the Patch family argued that Brandon did not have enough time to react to the ball being hit before he was struck by it. The plaintiffs contended that baseballs hit off of aluminum bats fly at a greater velocity than those off of wooden bats. Although the jury ultimately concluded that the Hillerich & Bradsby aluminum bat was made according to standards and not in any way defective, it still should have contained a warning label for users.

The Patch lawsuit is just one of several over the past few years against the company because of baseball related accidents. Included are a New Jersey family whose son suffered brain damage after he was struck by a line drive off of an aluminum Louisville Slugger and the parents of an Oklahoma teenager who endured severe head injuries after a similar incident according to an Associated Press article on the case. This is also not the first time aluminum bats have come under fire. Michael Rand of the Minneapolis Star Tribune recorded an account from eight years ago that listed numerous instances of aluminum bat related accidents and injuries. He mentions that before the 1999 baseball season, the NCAA adopted new rules relating to the size of aluminum bats which were copied by The National Federation of High Schools 2 years later.

The latest verdict is just one of many from the past and left to come against aluminum bat manufacturers. Hillerich & Bradsby Vice President of Corporate Communications Rick Redman released a statement following the verdict expressing the company’s condolences to the family but stated that it was an emotional court decision. Redman maintained that the company violated no rule governing the production of the bat and stated, “The verdict that our company ‘failed to adequately warn of the dangers of the bat’ has left us puzzled. It seems contradictory for the jury to say the bat is not defective but our company failed to warn that it could be dangerous. It appears to be an indictment of the entire sport of baseball.” Reactions to the ruling have resulted in mixed responses but Hillerich & Bradsby have no plans for an appeal.

DWT--Driving While Texting. Death on Kentucky Roads

Sun, 25 Oct 2009 08:00:00 EST

Will Kentucky pass laws prohibiting texting while driving? Well, there is a bill pending in the Kentucky state legislature that could do exactly that in 2010.

Rep. Rick Nelson, D-Middlesboro, has prefiled a bill for consideration during the 2010 regular session that would make “texting” while at the wheel a no-no. It also would prohibit drivers under the age of 18 from using any cell phone. Violators would face $50 fines.

The Kentucky State Police’s annual report for traffic collision stated there were a total of 962 reported accidents caused by cell phones in 2008. The true number is actually much higher, but a lot of people will not admit to using their phone at the time of an accident.

A study conducted by the Virginia Tech Transportation Institution concluded that a driver who is texting is 23 times more likely to be involved in an accident. But even if the bill is passed, it could be difficult for police to enforce.

According to Transportation Secretary Ray LaHood, some statistics show that nearly 6,000 people were killed and more than half a million were injured on America's roads last year in crashes linked to texting or talking while driving. As a result, more than 25 states have created some type of law restricting drivers from texting while operating their vehicles and many states have already proposed similar legislation, though it has not yet been passed.

Nevertheless it seems some states have been sending mixed messages, almost literally, when it comes to texting while driving according to a USA Today article from mid September. In the piece, Associated Press writer Andrew Demillo explains the possible contradiction resulting from certain states, including those with cell phone laws, sending traffic updates to drivers via text message or Twitter updates. The states argue that these updates are not cause for concern because they stress to drivers to check their messages and updates prior to leaving for their destination. However there are times when these “tweets” turn into an exchange of conversation between motorists and state officials, as demonstrated in Demillo’s article one user posted, “any idea what's going on westbound on 520? It's worse than rush hour..," and within a few minutes, officials responded: "Yes! There is a disabled vehicle just east of Lk Wash Blvd blocking right lane." The danger arises when these types of exchanges are being conducted while moving.

Amidst the talk of texting bans, one large group of motorists was at first absent from the conversation, truckers. In a report by Montana’s News Station, High Plains Owner and Operator Doug Landru was quoted in response to distracted drivers saying, “People don't realize they're sitting in a 4,000 pound weapon.” On the same token, distracted truck drivers are often behind the wheel of roughly 80,000 pounds and in most cases doing so while operating cell phones, radios and even laptops. But to that, Landru commented that to him a cell phone and internet are vital and Oregon trucker Edwin Parrish agreed saying, “Being able to check my text messages or my email messages, I'm able to know when I'm supposed to be some place.”

Fox 4 out of Kansas City, MO reported that several trucking companies are concerned about a texting ban because they use on board computer systems for communication. Nevertheless, a study at Virginia Tech University found that truckers driving while using the computers were 10 times more likely to have an accident. Often, the devices are disabled for use while driving, but not all are turned off and there is no way to tell whether or not they are being used while operating the vehicle. According to LaHood, the Obama administration will ban texting by truck drivers and restrict the use of other in-cab technologies as part of its effort to eliminate distracted driving.

Texting while driving has become such an issue in Kentucky that a statewide media campaign has been launched including a public service announcement by a Louisville girl involved in a wreck due to texting.

Foxes in the Hen House...Whose Really Wrtiting Those Medical Journal Articles?

Thu, 01 Oct 2009 08:00:00 EST

The Kentucky Justice Association included on September 11^th in their weekly clips, information concerning a study by editors of The Journal of the American Medical Association. The study was about occurrences of ghostwriting in medical journals and the New York Times reported the findings on September 10^th of this year.

According to the commentary, editors found that among authors of 630 articles, 7.8 percent acknowledged contributions to their articles by people whose names were not recognized. The study also reported ghostwriting rates of 7.9 percent in The Journal of the American Medical Association (JAMA), 7.6 percent in The Lancet, 7.6 percent in the Public Library of Science Medicine (PLoS), 4.9 percent in The Annals of Internal Medicine, and 2 percent in Nature Medicine.

These findings raise a multitude of reasons for alarm including violations of academic and medical ethics, but according to researchers the main concern is that the writing of industry-sponsored authors could introduce biases. These prejudices have the ability to affect treatment decisions by doctors which ultimately could influence patient care. It seems more and more drugs come onto the market each and every day all with their own risks and benefits, but when a doctor prescribes any of these pharmaceuticals, patients believe they are doing so in their best interest.

hans

The problem with sponsored ghostwriting comes when the literature about a new product is skewed in any direction causing a medication to be trusted when perhaps it should not be. The New York Times has continued to follow the story and on September 17^th released more findings and reported that many editors of the nation’s leading medical journals are pushing for a zero tolerance policy towards ghostwriting and are even getting help from Congress.

It is difficult for patients to know everything about every pharmaceutical company, their practices and their products and they should not be expected to. It is the doctor’s job to ensure every medication they prescribe has been tested and researched to the highest degree. However, in lieu of the current ghostwriting developments and with the access to information allowed in today’s society, patients can no longer claim complete ignorance and need to do their homework too when deciding whether a new drug is right for them.

We Blow The Whistle On Unsafe Kentucky Trucking Companies.....

Wed, 16 Sep 2009 08:00:00 EST

WTVQ based out of Lexington, KY reported on August 31^st that currently Kentucky ranks 11^th in the nation in trucking company safety violations per 100,000 residents. This could explain why so many trucking accidents upon further investigation are labeled as exactly that, accidents where no particular person was at fault. A semi-truck accident due to a blown tire or overturning on the road are not only incredibly dangerous but in most cases, entirely avoidable.

The American Association for Justice created a violations database which compiles a listing of motor carriers operating with federal safety violations and organizes them by state. The Association also reports that as of April 2009, there were 28,274 trucking companies, representing more than 200,000 trucks, operating on U.S. roads with safety violations. Of those, hundreds are listed in the state of Kentucky alone, including over 100 companies based in Louisville.

What's more is that in an article published by the Association last month, they found that trucks make up less than 4% of all passenger vehicles on U. S. roads but are involved in 12% of all motor vehicle fatalities. Violations include defective brakes, bald tires and loads that exceed weight limits. Blend these dangers with the fact that most truck drivers are only getting 4-6 hours of sleep at a time and you've got a deadly combination on America's highways.

Although Kentucky may not fall in the top five states with the highest violation rates (West Virginia, North Dakota, Nebraska, Vermont and Iowa) it doesn't excuse the 104 fatalities the state incurred in 2007 that involved large trucks. Coming in at 11^th, Kentucky reports 22 companies in violation of safety requirements per 100,000 people which is well over the U.S. average of 15. Neighboring states Indiana and West Virginia also come in above average with Indiana reporting 19 companies and West Virginia topping the list with 58. Ohio, Tennessee, Illinois, Virginia and Missouri all fall below average with numbers ranging from 3 to13.

To learn more about semi-truck accidents download a free copy of What the Insiders Don't Want You to Know About Semi-Truck Accidents or research accident attorneys.

Hans

The Secret Reason Why There Are So Many Semi-Truck Wrecks...

Tue, 15 Sep 2009 08:00:00 EST

It is a well known fact that the odds of you, your car, truck or SUV winning in an interstate battle with an 18-wheeler are slim to none. So far in September, Kentucky has seen the effects of semi-truck accidents when an I-64 accident killed a Mt. Sterling man, and a Daviess County woman was struck on Audubon Parkway on the same day. But most people may be unaware of why these accidents are happening in the first place. We all know that foul weather, icy roads, alcohol are often catalysts precipitating car and truck accidents, and for the most part, most drivers often increase their efforts to avoiding the road during these times.

So it may surprise you to learn in 2002 71% of truck accidents in Kentucky occurred in good weather and on dry roads, 75% occurred during the daytime and 88% on weekdays when driving is part of the daily routine. In fact, there were no contributing weather conditions at all in 78.6% of Kentucky truck accidents.

So if bad weather isn’t causing the wreck, what gives?

One of the top reasons for accidents is driver fatigue which can lead to dozing off or distraction related accidents in Kentucky and across the nation. According to the Insurance Institute for Highway Safety, “truck drivers behind the wheel for more than 8 hours had a twofold increase in crash risk…truckers’ long work hours cause sleep deprivation, disruption of normal sleep/rest cycles and fatigue.” Despite this statistic, in 2004 a new federal work rule went into effect allowing truck drivers to drive for up to 11 hours per day. And this was an improvement over the previous rule! The new rule’s goal was to improve safety but the Institute's survey showed the opposite as truckers are using new provisions to squeeze even more driving hours into the week. Just see this blog post by a real trucker who seeks to unveil the truth behind the profession.

And the driving force in money! Truck drivers drive more hours to get deliveries dropped off faster which then leads to more deliveries and essentially more money and higher satisfaction. According to the National Highway Traffic Safety Administration, driver fatigue is responsible for an estimated 100,000 motor vehicle accidents and 1500 deaths each year.

Let’s put two and two together. Sleepy truck drivers plus sleepy car drivers equal accidents. Not to say that there aren’t a plentiful variety of other reasons causing truck accidents, but this is a factor each of us can control to some degree. I know that if there was one thing that could prevent me from being in an accident, I would make sure to keep it in mind. Perhaps being alert and awake can help us recognize and avoid other drowsy drivers. So get more sleep!

Hans Interviewed on 840 Whas On Commonwealth Dodge 100mph Accident Case

Wed, 26 Aug 2009 08:00:00 EST

Francene of the Francene Show on 840 WHAS read my recent blog and wanted to know more about why Commonwealth Dodge may be liable for the deaths of two people involved in the 100 mph test drive that resulted in a car wreck this weekend. The interview aired live this morning.

You can download the interview here:

Is Commonwealth Dodge Liable for Fatal Wreck on Fern Valley Rd

Sun, 23 Aug 2009 08:00:00 EST

Tragedy happened today in Louisville, Kentucky when a Dodge Challenger on a test drive from Commonwealth Dodge was involved in a fatal crash with a Mercury Sable. The two occupants of the Sable were both killed and the driver of the Challenger was arrested. According to some news reports, the Challenger may have been driven at a high rate of speed. Wave 3 news reports witness Rick Lee said, "I heard the car racing down through here and of course, they race down through here all the time, and it kind of got mine and my son's attention. When we got up to try to see the aftermath of what was going down the road, we heard an impact."

According to the Courier Journal, a Commonwealth employee was a passenger on the test drive.

This leads to the obvious question. Can Commonwealth be held liable for the two deaths. I see two potential ways the dealership can be held liable. First, liability insurance follows the vehicle. This means that the owner of the dealership must provide liability insurance for every vehicle on its lot. So, even though a Commonwealth employee wasn't driving, the dealer's auto insurance will still have to provide coverage.

The second cause of action against Commonwealth Dodge could be filed based on the conduct of its employee that was on the test drive IF it can be proven that the salesperson allowed the driver to speed or drive in a reckless manner. The dealership would be liable under the theory of respondeat superior, a legal term that means the employer is liable for the actions of its employees. Here, the dealer's Commercial General Liability (CGL) policy would provide coverage.

Here, it will be important to obtain as many witness interviews as possible as soon as possible. Unfortunately, memories fade and stories change the farther away in time interviews are conducted.

Hans

p.s. As a side note, this story was of particular interest to me because at age 18 I test drove, and wrecked, a Toyota MR2 while on a test drive. Fortunately, no one was hurt.

Lawyers Aren't The Problem With HealthCare Costs- Lexington Herald Editorial Reveals Who Is.....

Mon, 17 Aug 2009 08:00:00 EST

Sunday's Lexington Herald Leader contained an editorial commenting on a New York Times article dealing with the increasing costs of health care. Here it is:

Tort reform doesn't cut health costs

Sen. Mitch McConnell's No. 1 idea for fixing what ails our health care system is to limit the rights of those maimed by medical malpractice.

But states that have enacted curbs on what McConnell calls "junk lawsuits" have yet to see the cost savings promised by McConnell and other proponents of tort reform.

On the contrary, Texas capped malpractice damages in 2003 only to experience a steep rise in health insurance premiums and medical costs.

Medicare spending rose 24 percent in the three years after punitive damages were capped at $250,000, according to the Dartmouth Institute for Health Policy.

One of the most expensive health-care markets in the country is the Texas city of McAllen. Only Miami, which has much higher labor and living costs, spends more per person on Medicare.

Boston surgeon Atul Gawande visited McAllen and wrote an account for The New Yorker, "The Conundrum: What a Texas town can teach us about health care" that's required reading for anyone trying to understand this admittedly baffling topic.

One night at dinner with six local doctors he asked why the average cost per Medicare enrollee had soared from $4,891, about the national average in 1992, to almost twice the national average of $15,000 per enrollee in 2006.

For perspective, the per capita income in McAllen is only $12,000.

Several of the physicians said doctors practiced defensive medicine to protect themselves from the city's especially aggressive lawyers; they ordered extra tests and procedures which drive up costs.

But what about the strict limits on malpractice damages. Haven't lawsuits gone down?

"Practically to zero," one of the docs said.

What's finally revealed is that doctors in McAllen are heavily invested in medical technology and imaging and surgery centers. They order lots of tests and procedures because they directly profit from them. They think of what they do as a business.

The critical choice facing this country is whether health care will continue to go the way of McAllen or whether it can be guided toward a Mayo Clinic model in which doctors work together to deliver the best care with the fewest tests and procedures.

We should all hope the Mayo model wins because the outcomes for patients are far better. Also, at the current rate, health care costs will soon eat up so much of the federal budget that this country will no longer be able to afford to defend itself.

The Texas experience with malpractice is not unique. Researchers at the University of Alabama at Birmingham surveyed 27 states that have limits on non-economic damages and discovered no savings for health care consumers.

McConnell is offering a few other of what he calls "common sense" ideas. He favors some insurance reforms, such as covering pre-existing conditions, and incentives for living a healthful lifestyle.

He also says individuals buying insurance should be entitled to the same tax deductions as companies buying insurance for their employees.

McConnell acknowledges that health care reform is necessary, but his prescription is mostly a placebo.

To read the NewYorker article, "The Conundrum: What a Texas town can teach us about health care."

hans

Judge Orders Microsoft to Stop All US Sales of Word

Fri, 14 Aug 2009 08:00:00 EST

I handle business litigation and disputes in and around Louisville, Kentucky for small businesses--I represent the little guy and I always root for the little guy taking on the big guy. And here is a case where you can really root for the little guy.

In a David v Goliath showdown, it appears round one goes to David. In what has become a very interesting intellectual property dispute, tiny software manufacturer Toronto-based i4i, which has 30 employees, claims that Microsoft violated an obscure patent related to Extensible Markup Language or XML. It's a key software component of many websites and
computer programs, including Word.
Tuesday, Texas Federal District Court Judge Leonard Davis agreed with i4i and entered an order fining the software giant Microsoft $290 million and ordering them to stop selling Word in the United States.
Judge Davis' ruling came following a jury verdict that found that Microsoft had infringed on i4i's 1998 patent. The jury awarded $200 million and Judge Leonard Judge Davis ruled that Microsoft should pay i4i an additional $40 million for its willful infringement of the i4i patent. Microsoft also was ordered to pay slightly more than $37 million in prejudgment interest, including an additional $21,102 per day until a final judgment is reached in the case. The court also ordered Microsoft to pay $144,060 per day until the date of final judgment for post-verdict damages.

i4i was represented by the national business litigation firm McKool Smith.

hans

Court Upholds $21.6 Million Bad Faith Verdict

Thu, 13 Aug 2009 08:00:00 EST

In a short, but very sweet, 2 page opinion, the Fifth Circuit Court of Appeals upheld a $21 million dollar verdict against United Fire and Casualty for its claims hanling following Hurricane Katrina. A portion of the verdict was for bad faith in the handling of the claim.

The Plainitff was Robert Fresh Markets, a Louisiana grocer whose business had been destroyed during the storm. The Plaintiff's first witness was an insurance adjustor who initially reported to United Fire & Casualty that storm damage to the roofs of Robért's grocery stores allowed in rain and wind, destroying merchandise and forcing stores to close for repairs. Franco said the adjustor testified that United Fire & Casualty pressured him to change his report in a way that favored the company and then terminated him after he did.

Following the recent flooding in Louisville, Kentucky I suspect many insurers will wrongfully deny policy holders claims here as well.

If they do, claimants may be able to hire a Kentucky Bad Faith Lawyer and use Kentucky's bad faith laws (Unfair Claims Settlement Practices Act) to recover damages from their insurer for wrongful claims handling.

Hans

A Revealing Letter from A Nursing Home Nurse....

Mon, 10 Aug 2009 08:00:00 EST

As a personal injury lawyer that handles nursing home abuse and neglect cases, I support Kentuckians for Nursing Home Reform. As a supporter I receive their newsletter. This month Bernie, the director, included the following letter he received from a nurse at a nursing home.

"From a nursing home employee....

I have been in health care for 26 years. I can remember when we had enough staff to care for our fellow Kentuckians, sometimes seeming as if we were family. Now it seems Boards and Administrators of care facilities keep just enough staff to run a "production plant" or "assembly line.” We are so understaffed.

It's painful to know there is care you can't give because there is just not enough staff. Most of my day is spent giving just the minimal amount of care, enough to make sure my residents are comfortable, when they deserve so much more.

And, I am yet to see a state or ombudsman visit where the facility didn't know in advance. Oh, but it is on these days that we have proper staff, until the visit is over, then it is back to the same staffing shortage, and minimal care.

Our elderly Americans should be our most celebrated citizens. It is they who prayed for us, raised us, built our schools, roads, and fought in wars to protect our rights, and freedoms, in hopes that their later years would be comfortable and worry free. But the sadness is they lose everything they worked for all their life for payment for care they don't and can't receive.

I enjoy my residents and the service I can give them, have grown quite fond of them, and in some instances, I am the only face they see. I would regret losing that bond, which is where my dilemma lies. I don't want to lose my job. But I would dearly love to see the media get involved and bring this petition to the average Kentuckian, would even talk to the media myself, but I am not sure how to proceed. Any advice in how I could help would very much be appreciated."

We need your help now more than ever, conact Kentuckians for Nursing Home Reform to find out how you can help.

Hans

Study on Nursing Homes Reveals....

Sun, 09 Aug 2009 08:00:00 EST

Because I am one of only a handful of personal injury lawyers in Kentucky that handle nursing home negligence cases, I am frrequently contacted by people who believe their loved one received poor care while a nursing home resident. Understaffing, infrequent patient repositioning leading to pressure sores, dehydration and a lack of general personal care are the major complaints. Not to mention overmedication and physical and chemical restraints.

In reviewing theses cases we have noticed that the majority of complaints arise out of the care given at for profit nursing homes.

Well.....

It appears our very non-scientific assumption has been given scientific credibility. Non-profit nursing homes provide better care than their profit driven counterparts. At least that's the conclusion of Canadian researchers who reviewed the results of 82 studies from 1965 to 2003. "Based on their findings, the review authors calculated that if all nursing homes were non-profit, nursing home residents in the United States would receive 500,000 more hours of nursing care per day, while those in Canada would receive 42,000 more hours of nursing care per day."

The National Institute on Aging has some excellent information to help you choose a good home.

Why The Michael Jackson Wrongful Death Lawsuit May Be Worthless....

Wed, 29 Jul 2009 08:00:00 EST

Well, it hasn't been filed yet, but there's no doubt its coming-- a wrongful death lawsuit by the Estate of Michael Jackson. Some lawyers are calling it the "mother of all medical malpractice lawsuits."

Well I say, "not so fast my friends." The wrongful death lawsuit may be virtually worthless. Here's why.

The primary component of damages that the Jackson Estate would be allowed to claim in a wrongful death suit is the loss of future earning. This would include concert ticket sales, royalties from albums, and commercial endorsements, any appearance fees, etc. In fact, Jackson was scheduled to start a 50 show tour later this year.

So, it should be simple to calculate the loss to the Estate, right? You simply hire an expert economist, an expert promotor, an expert music producer and manager and you have them estimate how much MJ would have earned over his projected lifetime. That would then be the loss to the Estate and it would then have the right to recover that amount amount from the negligent parties (assuming there are any).

That is would typically happens in wrongful death cases, albeit it on a much smaller scale; however, here, that formula may not work for one simple reason....

Celebrities often make more after their death than when they are alive. Or, to put it another way, Jackson's Estate may INCREASE in value as a result of his death.

For example, according to Forbes Magazine, in 2007 Justin Timberlake pulled in $44 million; Madonna $40 million. Not bad by anyone's standards. But compare that to Elvis Presley's $52 million and you start to see where I'm going. Elvis has been dead for 32 years yet his Estate is making more today in one year than he made over his entire career when he was alive. In fact, Elvis even has his own station on Sirius Radio.

Every October, Forbes compiles its list of the 13 richest dead celebrities. In 2008, the ranking were as follows:

The Lucky 13

Elvis Presley ($52 million)
Charles M. Schulz (Peanuts + Snoopy = $33 million)
Heath Ledger ($20 million)
Albert Einstein ($18 million in 2007, think Baby Einstein videos!!!)
Aaron Spelling ($15 million)
Dr. Seuss (Theodor Geisel)($12 million)
John Lennon ($9 million)
Andy Warhol ($9 million)
Marilyn Monroe ($6.5 million)
Steve McQueen ($6 million)
Paul Newman ($5 million)
James Dean ($5 million)
Marvin Gaye ($3.5 million)

This will likely be the case with Jackson's Estate as well. The "King of Pop" will likely equal or surpass the "KIng of Rock N Roll" in the post-death celebrity earnings category. Let's face it, when you think Hollywood you think James Dean and Marilyn Monroe, but when you think music, you think of Elvis and Michael.

In fact, according to the Wall Street Journal, it may have already started. According to an article about Apple's projected earning in the WSJ, "Michael Jackson’s death did move some recordings. According to The Journal’s Ethan Smith, U.S. retailers sold 415,000 albums by Michael Jackson in the four days following his June 25 death, according to Nielsen’s SoundScan. That’s compared with fewer than 10,000 copies that were sold in the previous full week. Over half of those sales were digital downloads made on services such as iTunes and Amazon.com’s AmazonMP3." Apparently, Jacksons fans appreciate his music more now that he's gone. Interesting.

And that, my morbid readers, is why the Jackson wrongful death lawsuit may not be frivolous, but it may be worthless.

hans

How (Not) to Hire a Lawyer....

Mon, 27 Jul 2009 08:00:00 EST

Previously, I posted The Truth about TV Advertising Lawyers. I later learned I wasn't the first person to point out the obvious. Aaron Larson, a Michigan attorney, has a website devoted to answering the question "how to hire a lawyer."

On it he discusses the benefits of hiring a contingent fee attorney, "Many attorneys take certain types of civil suits, particularly personal injury cases, on a "contingent fee" (or "contingency fee") basis, where they do not charge an attorney fee unless they recover money for you. Please note that there are legal costs involved in litigation, and that ordinarily you will be required to repay those costs even if you lose. Almost every state limits contingent fees for personal injury and workers' compensation cases. If your case is potentially worth a lot of money, you may be able to negotiate a reduction of the attorney's contingent fee -- however, the best personal injury attorneys are sometimes able to recover substantially more money for their clients than attorneys with lesser skills, resulting in a greater award to you regardless of the percentage taken by the attorney." (emphasis added)

He goes on to explain "One of the best ways to find an attorney is to consult an attorney you trust. If you do not know any attorneys, ask your friends for names of attorneys they trust. It is not important that the attorney can handle your case -- what is important is that the attorney is likely to comprehend the issues of your case, and is well-positioned to know which attorneys in your community have the skills to handle your case. Even if the attorney cannot personally take your case, he will often be able to refer you to an attorney who can."

He also cautions, "A number of commercial on-line directories claim to screen their attorneys, or claim to list only highly qualified attorneys. Most are not being completely honest. Regardless of their promises, most on-line directories will list any attorney who pays the required fee, and there is absolutely no guarantee that the listed attorneys are qualified to handle your case."

And finally, he issues the same warning I did in my post. "Should I hire the guy with the 1-800 number, and all of the ads on TV?

Generally speaking, television and radio advertisements are a bad way to find an attorney. Many advertisements are paid for by referral agencies, which collect large numbers of calls and then divide them up between member attorneys. Even when the advertisements are paid for by a law firm, often many of the cases are referred out to other firms who share the enormous cost of advertising. Most of the time, the attorney with the big advertising campaign will not have an office near you. Unless your case is worth a lot of money, you may well find that you are quickly referred to a different firm or that you can't get much attention for your case. There is something very important to remember, when it comes to hiring a personal injury lawyer -- some of the best personal injury attorneys do little or no advertising. They get their cases through "referrals" from other attorneys, due to their reputations for doing good work and getting good results. Should I hire the guy with the big "yellow pages" ad? If you look at the "full page" ads in the yellow pages, you will likely find that there are two types. The first type is an ad for a local attorney, who has chosen to pay for the full page. The second type is an ad for an attorney from outside the area, sometimes from the same attorney who runs the huge television ad campaigns. Typically, the biggest ads are from "personal injury" firms, who hope that their large advertisements will bring them large numbers of injury cases. The better personal injury attorneys and firms typically do pay for full-page ads. However, as was previously noted, some of the best personal injury attorneys do little or no advertising at all. Also, there are many attorneys who buy the largest ad that they can afford, in order to make their practices appear better than they really are. If you look through the yellow pages, you will see that most attorneys claim to specialize in "personal injury" cases. Many of these attorneys have handled very few personal injury cases, and some have never had even a single personal injury case. The yellow pages can provide some degree of confirmation that a particular law firm is established, but even a big advertisement does not certify that a firm is qualified to handle your case."

Hans

Louisville MD Suspended for touching....

Thu, 23 Jul 2009 08:00:00 EST

A Louisville doctor practicing in the south-end has given up his license after several patients accuse him of fondling, inappropriate sexual comments and, in one case, sex in an exam room.

And, if you need evidence there's a white coat code of silence, you need only know that the hospitals and clinics he worked at knew of the allegations since 2001--but did not report it to the medical licensure board until 2008. They might have some problems if some of these patients decide to sue.

Dr. Michael Hess' graphic disciplinary report, can be read here:

Hans

The Case of the Exorbitantly Expensive Emeralds...

Tue, 21 Jul 2009 08:00:00 EST

As a Louisville attorney that has handled a number of high dollar breach of contract cases, I followed with interest the highly publicized case of a local Louisville jeweler that was being sued by the Brown-Forman heirs for allegedly selling
According to Jason Riley of the Courier-Journal, "Louisville jeweler Jim Jackson does not have to refund $800,000 to the family of former Brown-Forman Corp. chairman Robinson S. Brown Jr. for a necklace he sold Brown in 2005.

Brown's sons, Robinson S. Brown III and J. McCauley "Mac" Brown, had asked jurors to rescind the sale of an emerald and diamond necklace, claiming Jackson tricked their father into spending $800,000 on jewelry that was worth about $500,000.Jackson, who had tears in his eyes after the jury's decision, said he was relieved, as the three years of litigation surrounding the necklace has been devastating financially and emotionally. "I didn't do anything wrong," said Jackson, adding that the worst part was the strain on his wife, family and employees at his business, Aesthetics in Jewelry."

Sounds like the right result to me. Sometimes the deal we make in the morning doesn't look so good at night--that doesn't mean the seller commited fraud. Buyer beware.

hans

Part II: The REAL TRUTH About Medical Malpractice Verdicts in Kentucky

Wed, 15 Jul 2009 08:00:00 EST

Seems my recent post about medical malpractice verdicts in Kentucky got at least one reader stirred up enough to post a comment telling me I was wrong. Well.... I'm not.

Kentucky doctors are not leaving the state because of medical malpractice suits (net loss of 19 doctors between 2000 and 2002). And medical malpractice premiums are not a large part of physician's overhead (less that 4% of revenue goes to insurance--physician salaries are 63% of overhead).

But those who want to limit injured patient's rights have never let the facts stand in their way. The phrase "sometimes wrong, but never in doubt comes to mind."

If your really want to know the truth about medical malpractice in Kentucky, read this report authored by an independent non-profit organization founded by Ralph Nader, Public Justice. Here is the report: www.citizen.org/documents/KY_MedMal_Report.pdf

hans

"Admit nothing. Deny as much as possible. Stall. Protect, protect, protect. Blame somebody who isn't here to protect himself."

Fri, 03 Jul 2009 08:00:00 EST

"Admit nothing. Deny as much as possible. Stall. Protect, protect, protect. Blame somebody who isn't here to protect himself." Rick Bozich, Louisville Courier Journal, Max Gilpin, The Real Loser in JCPS Report, July 1, 2009

Bozich's article was a scathing indictment of the "investigation" into the death of a 15 year old boy during football practice at a Jefferson County, Kentucky public high school. The death, and the tragic circumstances surrounding it, have made national news.

However, this post isn't about that. Instead, this post is about why no one should be surprised that a defendant would refuse to accept responsibility for its actions.

As a lawyer that represents people that have been injured as a result of someone else's negligence or misconduct, I see defendants utilize this above strategy everyday in litigation.

Blaming the victim has long been the strongest weapon in a defense attorney's arsenal. And it matters not what kind of case it is. Failure to diagnose breast cancer? The patient should have sought out a second opinion when her first doctor told her she was cancer free. Rear-end car wreck? Injured driver had a pre-existing condition that is unrelated to the accident. No matter what the kind of case, the defendant always seeks to shift responsibility to the injured party. Without fail.

And it works. If you don't believe me, all you have to do is read any of the comments to any online newspaper article and you will see post after post blaming the victim instead of the wrongdoer (most recently in the Louisville Zoo lawsuit they blame the victims and their lawyer, too).

I find this behavior inconsistent with the oft spoken mantra of tort reformers that we need more "personal responsibility." It seems that what people really want is for innocent injured people to take responsibility for someone else's snegligence. How else can you justify blaming injured patients when their doctor makes a mistake? You can't. At least you can't do so and remain intellectually honest.

The simple fact of the matter is that deny, delay, defend and blame is business as usual for defendants in litigation, especially corporate defendants and insurance companies.

Sorry, Bozich. Sadly, that's just the way it is. And not just for poor Max Gilpin's family, but for any person that gets injured and seeks justice.

Hans

The REAL TRUTH About Medical Malpractice Verdicts in Kentucky

Sat, 27 Jun 2009 08:00:00 EST

I am so tired of uninformed people telling me that we need tort reform in Kentucky to keep good doctors in the state. Too many people wrongly believe that juries are shoveling money at injured patients like the government bailing out the auto makers.

Well the TRUTH of the matter is quite the opposite. In fact, the absolute worst kind of case to take before a jury is a medical malpractice case. Juries don't like to think doctors make serious mistakes that injure or kill. Couple that with the fact that most people sitting on juries have been drinking the insurance company Kool-Aid for so long that they actually believe the hype about medical malpractice suits being out of control and jeapordizing health care. So, when most people get on a medical malpractice jury, they are already predisposed to side with the doctor.

Think I'm making this up? Well, here are the actual statistics in kentucky on medical malpractice cases from the Kentucky Trial Court Review 2008.

In 2008, fifty-six medical malpractice cases were tried. The patient prevailed 11 times. That means the healthcare provider won 45 times. You don't need to be a statistics major to do the math. If you were a patient in a med mal lawsuit in Kentucky in 2008, you had about a 19.6% you would win at trial. Heck, you'd be better of taking the $100,000 - $200,000 it takes to get a medical malpractice case to trial over to the boat and play blackjack. At least in blackjack the House only has an 8% advantage over the player. Or better yet, bet it all on black in roulette, you have a 47% chance of winning.

Some of you may be asking, "Is gambling really a proper analogy for going to trial in a medical malpractice case?" Sure it is, in the few cases that the plaintiffs won, the juries awarded a total of $26,785,227 (this is in the entire state of Kentucky) divide that number by the number of trials, (56) and the average verdict was $478,307. So, if I told you I was going to give you $100,000 in cash (the amount of money it would take to get a medical malpractice case to trial) and gave you the option of going to trial were you have a 19.6% chance of winning an average of $478,000, or taking it to Caesar's and betting it all on black were you have a 47% chance of winning, where would the smart money play?

Please don't tell me our system of justice is a "lawsuit lottery." There is no place for that kind ignorance when dealing with catastrophically injured patients. Limiting the amount of money severely injured patients can recover does nothing to "fix" the system. The system is broken alright, its just broken in favor of the healthcare providers. And that's the REAL TRUTH.

Hans

Former Louisville Lawyer Has More Problems...

Sun, 21 Jun 2009 08:00:00 EST

Anyone familiar with this blog is probably familiar with Louisville attorney Fred Radolovich (see previous posts). Radolovich resigned from the bar under terms of disbarment rather than risk being prosecuted for perjury charges arising out of misrepresentations he made to a judge about his experience handling death penalty cases (he said he had tried 4 when he hand actually tried 0).

Here is why he is relevant today. Because a large portion of my practice is representing people in claims against their former attorney (a.k.a. legal malpractice or legal negligence), I am frequently asked to review cases where a potential client believes their former lawyer mishandled a criminal matter and, as a result, the person was convicted of a crime the didn't commit. I have never taken a case involving malpractice in a criminal case and there is a good reason. Kentucky law requires that a criminal conviction be overturned before you can so the lawyer for malpractice. That's right. Basically, your lawyer could fall asleep in trial, refuse to cross exam any witnesses or present any proof. But unless you won on appeal, you could not sue the lawyer for malpractice. A very high burden indeed.

Well, it seems someone may have a good criminal malpractice claim against Fred. Here is the opening paragraph from Andrew Wolfson's article in the Courier Journal:

"Fifteen years old and charged with two murders in 1995, Michael Jennings thought he had no choice but to plead guilty in exchange for a life sentence.

His own lawyer, Fred Radolovich, indicated he could face the death penalty — or consecutive sentences of life without parole for 25 years — if he was convicted at trial, according to court records.

Radolovich, who has since been disbarred, was wrong on both counts: The U.S. Supreme Court had abolished the death penalty for such young offenders more than a dozen years earlier, and Kentucky law doesn't allow life sentences to be run consecutively.

For 14 years, Jennings fought from behind bars to overturn his conviction.

He saw his efforts rewarded Wednesday, June 17, when U.S. Magistrate Judge Dave Whalin in Louisville ruled that Radolovich gave Jennings such bad advice that his conviction should be thrown out and the state of Kentucky should try him or release him."

It's not a slam dunk, and Radolovich might not have any insurance or assets to cover a judgment, but it does go to show that not all lawyers are equal.

hans
ps be sure to check out our video explaining "What is Legal Malpractice"

Leveling The Playing Field...

Thu, 11 Jun 2009 08:00:00 EST

Recently, a local Louisville personal injury lawyer filed the first lawsuit against the Louisville Zoo for injuries his client received after the zoo's train derailed. Nothing unsual about it. Nothing unusual at all, including the sarcastic and baseless attacks that were launched against the attorney on the Courier Journal's website in the comment section following the story.

What people don't understand is that most personal injury lawyers don't file baseless lawsuits. There's no money in doing so. Trust me, insurance companies don't pay big money for frivolous claims (heck, they seldom pay big money for legitimate claims). A lawyer that works on a contingency fee (meaning she doesn't get paid unless she wins money for her client) has no incentive to file a lawsuit and incur thousands if not tens or hundreds of thousands of dollars in expenses getting the case ready for trial. Think I'm exaggerating? I'm not, in my last three trials we spent in excess of $100,000 getting each of them to trial.

Contingency fee lawyers are just like any other business owner, they must turn a profit to pay the salaries of their employees, the rent, and other overhead and expenses. If they fail to do so, they are not in business long. My respected colleague John Day in Nashville has a great post on this topic.

Hans

Courier Journal Article on Poppe Law Firm $3.9 Million Bad Faith Verdict

Sat, 06 Jun 2009 08:00:00 EST

Woman who sued doctor's insurer awarded $3.8 million
Ruling: Insurer acted in bad faith

By Andrew Wolfson • awolfson@courier-journal.com • June 6, 2009

When Debbie Daniels was scheduled to undergo a hysterectomy in 2003, her doctor suggested he do a "tummy tuck" as well.
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But the obstetrician/gynecologist didn't tell her that he'd never been trained to perform the procedure that gets rid of excess skin and fat.

She also didn't know he'd been kicked off the staff of another hospital for doing tummy tucks without proper credentials -- or that he did the procedure unlike any other doctor, according to court records.

Two days after Dr. David Lee Grimes cut Daniels open and stitched her back up, her wound burst, leaving a basketball-sized hole in her belly 7 to 8 inches deep, one of her lawyers said. She had to undergo emergency surgery -- the first of many -- and be placed in a medically induced coma for a month.

Left permanently disabled, Daniels, then 39, a respiratory therapist in Paducah, sued her doctor. An expert witness hired by his insurance company told the carrier that she was "appalled" by what Grimes did -- that it was "inexcusable and indefensible," according to internal documents the company was later forced to disclose.

But for nearly two years, the company – -- American Physicians Assurance Corp., which insures many Kentucky doctors – -- refused to engage in settlement discussions. When it finally made an offer, after nearly two years, it proposed paying Daniels only $75,000, even though the company's internal documents showed it had valued her damages at $1 million, according to court records.

Unemployed, destitute and unable to keep her two children fed and housed, Daniels eventually accepted the $650,000 the company offered on the eve of the trial of her suit in 2006.

But she reserved the right to sue the company for the settlement delay. And on Wednesday, a Jefferson Circuit Court jury, after a weeklong trial and 11 hours of deliberations, awarded her $3.8 million, finding that the insurance company acted in bad faith by delaying payment of her claim when it knew its client was liable.

The verdict included $3,479,277 in punitive damages.
to do the right thing and treat people fairly."
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One of her lawyers, Hans Poppe, said it "lets insurance companies know the citizens of Kentucky are watching them" and that they will pay for "forcing injured people into unnecessary litigation with frivolous defenses."

The insurer, which has offices in Louisville and is based in East Lansing, Mich., doesn't comment on litigation, according to Ann Storberg, vice president of investor relations, although she said the company's policy is to pay claims when liability is clear.

All states have laws like Kentucky's unfair claims settlement practices act, but Kentucky is one of only a few where juries, rather than state insurance commissioners, impose penalties for violations in cases brought by a patient against their doctor's insurer, Poppe said.

The statute says it is unlawful for insurers to fail to attempt "in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear."
Kenton County verdict

This week's verdict was the second in Kentucky in five weeks in which a jury punished an insurer for acting in bad faith with a third party -- a doctor's patient.

On April 30, a Kenton County jury returned a $2.5 million verdict against Medical Protective Insurance Co. for failing to promptly settle a damage claim with a woman whose doctor severely damaged her inner ear during a simple wax-removal procedure.

She had won a $1.6 million award for her medical damages through arbitration, but the jury found that the insurer made her litigate after liability was clear. Evidence showed an adjuster collected a bonus by reducing claims, said the woman's lawyer, Austin Mehr.

Don Darby, who defends medical malpractice and other claims, said the two verdicts should prompt insurance companies to settle various kinds of cases, including auto accident claims, more quickly.

"Overall, more cases will be settled at a higher number," he said.
Michael Hance, who is president of the Kentucky Justice Association, a plaintiffs' trial lawyers group, predicted that the verdicts will prompt insurers to "treat injured people fairly and stop playing a numbers game."
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Richard Schiller, who defends lawsuits for insurance companies, said the verdicts "won't scare them into settling" but will make them evaluate cases more carefully and more fully document decisions not to settle.

The verdict against American Physicians Assurance was the second largest of at least 30 bad-faith judgments returned in Kentucky since 1998, according to Kentucky Trial Court Review. The largest, from Scott County, was later reversed.

Daniels' suit was tried before Jefferson Circuit Judge McKay Chauvin. Because Poppe was a witness, another lawyer, Kenneth Friedman, of Bremerton, Wash., helped represent her.

The company's lawyer, Walter Haggerty, of Cincinnati, declined to be interviewed. Poppe said the company offered several defenses, including its claim that its only obligation was to its insured -- Dr. Grimes -- not Daniels.

The company also claimed it couldn't settle as long as Grimes said he had done nothing wrong, and that Daniels contributed to her own injuries because she was a smoker.

Poppe said Grimes should have known not to give Daniels a tummy tuck because she smoked and had other health problems.

Grimes, who practiced in Paducah, is now a resident in preventive medicine at the University of Kentucky. He didn't respond to messages.

Poppe said Daniels is still in constant pain and will be permanently at risk of medical complications. But he said she will now have enough money to pay her mortgage and cover her prescriptions and medical care needs.

"I can only hope that insurance companies will think twice before dragging people through what they put me through," Daniels said.

Louisville, Kentucky Jury Awards Poppe Law Firm Client $3.8 million in Insurance Bad Faith Trial

Thu, 04 Jun 2009 08:00:00 EST

Jury Awards $3.8 Million Against Insurer

June 3, 2009, Louisville, KY

A Jefferson County jury awarded $3.8 Million to a Paducah woman for an insurer's unreasonable delay in settling her medical malpractice claim against a doctor who had performed an unorthodox surgical procedure he described as a "modified abdominoplasty" at Lourdes Hospital in July of 2003. The surgery on Deborah Daniels, a respiratory therapist, resulted in life-threatening complications requiring multiple and extended hospital stays. She brought suit against the surgeon, Dr. David Grimes, in June of 2004. By May of 2005 her doctor reported she would never be able to work again.

Although the insurer had information indicating that Dr. Grimes' liability for Daniels’ injuries was reasonably clear, American Physicians Assurance Corporation made no meaningful attempt to settle Daniels' claim until July and August of 2006. Even after their own board-certified medical consultant told them that Dr. Grimes surgery was “inexcusable and indefensible,” they continued to delay settlement efforts and offered only $75,000 to settle the case at a court ordered mediation. These delays left Daniels destitute and under severe financial stress. Ms. Daniels testified that the day of mediation made her feel like her entire life and 20 year career were worth nothing in the eyes of the insurer. The financial and emotional stress, and AP’s threat to void coverage, compelled her to settle her claim against Dr. Grimes for significantly less than the policy limit of $1 Million.

After settling the claim against the doctor, Daniels brought suit directly against American Physicians alleging that its delay in settling the claim and its refusal to pay a fair sum for her injuries violated the Kentucky Unfair Claims Settlement Practices Act. Her Louisville attorney, Hans Poppe , foresaw that he would need to be a witness at trial. Therefore he sought out attorneys specializing in "insurance bad faith" litigation. He hired the Friedman | Rubin firm with offices in Alaska and Washington. According to attorney Ken Friedman who tried the case, "AP Assurance said they did nothing wrong or unusual in this case and that every claim was handled in this same manner.” Friedman continued, “I don’t think they realized until the end of trial that it was their ‘business as usual’ tactics that were on trial in this case.” The jury heard evidence that the claims adjusters were given financial targets to pay less in claims to injured patients in 2006 and adjusters had goals to push more claims to trial rather than settlement. The jury awarded Daniels $350,000 compensatory damages and $3,479,277 in punitive damages. Friedman said “the jury deserves a lot of credit for analyzing a complicated set of facts and understanding what went wrong, and why. They also deserve credit for rendering a verdict that will send a message to all insurers in Kentucky that they have serious obligations to make a good faith effort to pay valid claims promptly and fairly.” The jury wanted the company to get the message -- the punitive award was the exact sum that the claims adjuster was told to cut from her block of claims in 2006.

Poppe Law Firm Client Awarded $3.9 million in Insurance Bad Faith Case

Thu, 04 Jun 2009 08:00:00 EST

Yesterday, a Jefferson County jury awarded my client $3.9 million in an insurance bad faith case against AP Assurance for violating the Kentucky Unfair Claims Settlement Practices Act. I was pleased to be involved with this case along with Ken and Rick Friedman. Here is the verdict. You can read the Courier Journal article here
hp

Jury Award's Poppe Law Firm Client $5.1 Million

Mon, 01 Jun 2009 08:00:00 EST

Jury awards widow $5 million

By Jason Riley • jriley@courier-journal.com • September 4, 2008

The wife of a Frankfort man who died in 2003 after a surgery at Jewish Hospital that was supposed to alleviate his Parkinson's disease has been awarded more than $5 million in damages by a Jefferson Circuit Court jury.

Norman Gene Carroll, the brother of former Gov. Julian Carroll, died Feb. 4, 2003, a week after an elective surgery in which he was supposed to have a deep brain stimulating device inserted.

On Friday, his widow, 73-year-old Retha Carroll, was awarded almost $5.1 million from medical staff involved in the surgery, including $3.5 million for her husband's pain and suffering, $1.5 million for the loss of consortium and about $96,000 in medical expenses.

Jewish Hospital was dismissed from the lawsuit a few years ago.

"She is overjoyed that a jury finally made the health-care providers take responsibility," said Hans Poppe , her attorney. "For five years ... everybody said it was somebody else's fault."

Shannon Ragland, editor and publisher of Kentucky Trial Court Review, said the pain and suffering award was particularly high given the relatively short amount of time Norman Carroll suffered — "though it was a horrible way to go."

And the $1.5 million consortium award, which allows claims for loss of companionship of spouses from injury until death — was the largest for a wife in Kentucky since at least 1997, when Ragland began tracking state jury verdicts.

The previous high, Ragland said, was $1 million in a Boyd County case from 2001 where the husband lived three years after a missed cancer diagnosis. Norman Carroll lived only a week following the surgery.

The lawsuit, filed in 2004, claimed that doctors and nurses who were working on Carroll on Jan. 28, 2003 did not stop the surgery and take appropriate action when he started struggling to breathe.

Poppe said Carroll was awake for the procedure and told his surgeon, Dr. Dante J. Morassutti, and his nurse, Carolyn Lowe, that he was having difficulty breathing.

Five medical personnel testified during the trial in Jefferson Circuit Court that Dr. Atul Barry, an anesthesiologist, was called to the room to decide whether to stop the procedure, Poppe said.

During the two-week trial, Barry denied that he was called to the room, but Morassutti and others claimed Barry was present and said it was safe to continue, Poppe said.

"This was an elective procedure that they could have stopped anytime," said Poppe . "But the procedure didn't stop and he didn't get any better."

Carroll eventually lost consciousness and went into a coma.

His wife took him off life-support about a week later, according to court records.

"Norman should not have died that day and his wife should not have had to make the decision to take him off life-support," Poppe said.

The jury apportioned much of the blame to Barry, who was ordered to pay about $3 million in damages. Morassutti was ordered to pay more than $1 million and Lowe's estate and Medical Center Anesthesiologists must each pay $509,000.

"We all sympathized and felt for this family," said Sean Ragland, an attorney for Lowe's estate. He declined to discuss specifics of the case or trial.

Attorneys for Barry, Morassutti and Medical Center Anesthesiologists did not immediately return phone calls.

Reporter Jason Riley can be reached at (502) 582-4727.

Kentucky Nursing Home Added to Federal Oversight List

Sun, 10 May 2009 08:00:00 EST

Another Kentucky nursing home, Madison Manor in Richmond, has been added to the federal Special Focus Facilities list. The list highlights facilities that have more problems than most nursing homes or more severe problems, or a pattern of problems. You may recall our previous blog entry highlighting abuse of a resident that was caught on video tape.

Last year, Medicare came out with its "Bad List" of nursing homes that need significant improvement. We listed all of the Kentucky nursing homes here.

Nursing home negligence and abuse can be avoided by researching the home before admitting your loved one. We have written a book to assist you in locating a nursing home in Kentucky and you can download it for FREE here.

hans

Guess What Forbes Magazine Says We Need More Of? The Answer Will Shock You....

Fri, 08 May 2009 08:00:00 EST

It's no secret that Forbes Magazine hates lawyers. Especially trial lawyers. After all, aren't the trial lawyers the ones running the economy into the ground, forcing those nice insurance companies to raise premiums and making it impossible for doctors to deliver babies? (don't forget trial lawyers are also probably responsible for acide rain, global warming, famine, locusts, termites, etc.)

So, why is Forbes now saying we need more trial laywers, not less?! Well it seems that Forbes is concerned with all of the foodborne illness that come from contaminated foods that are not properly prepared or packaged. William Baldwin writes "One possible solution is more government and more laws. Those familiar with the proclivities of this magazine will not be surprised that I take a dim view of this solution (and, in particular, of the proposed Food Safety Modernization Act, which would bury food preparers in paperwork). No, I would prefer to have the same government and the same laws, but--here's the surprise--more tort lawyers."

Baldwin concludes by saying "Add technology to tort law and you get a powerful force for safety."

Something us trial lawyers have known and preached for a long time. However, it isn't limited to food, you can thank lawyers for seatbelts, airbags, kids pajamas that don't burst into flame, and a million other things that keep people safe. It's about time someone over at Forbes recognized the vitally important role lawyers play in society.

hans

FDA Warns "Stop Using This Diet Drug RIght Now."

Mon, 04 May 2009 08:00:00 EST

One of the fundamental problems with most diet supplements is that they don't have to go through a Federal Drug Administration approval process. There are simply too many diet supplements on the market for the FDA to test, approve and monitor all of them. This leads to a lot of products we put in our bodies being untested by any meaningful organization to ensure they aren't harmful.

Because the FDA isn't involved in the process on the front end, the best they can do is to ask that products be pulled on the back end, once there is a question about safety. That's exactly what happened this past week went the FDA warned consumers to STOP using the popular diet and energy supplement Hydroxycut.

You can see an Associated Press video of the recall here:

"The Food and Drug Administration said the company that makes the dietary supplement has agreed to recall 14 Hydroxycut products. Available in grocery stores and pharmacies, Hydroxycut is advertised as made from natural ingredients. At least 9 million packages were sold last year, the FDA said. Dr. Linda Katz of the FDA's food and nutrition division said the agency has received 23 reports of liver problems, including the death of a 19-year-old boy living in the Southwest. The teenager died in 2007, and the death was reported to the FDA this March. Other patients experienced symptoms ranging from jaundice, or yellowing of the skin, to liver failure. One received a transplant and another was placed on a list to await a new liver. The patients were otherwise healthy and their symptoms began after they started using Hydroxycut." Katz went on to say "Part of the problem is that the FDA looks at dietary supplements from a post-market perspective, and an isolated incident is often difficult to follow." Public health researcher Ano Lobb, who has studied Hydroxycut and other dietary supplements for Consumer Reports, said "You really have to be careful about dietary supplements, especially weight-loss pills. People believe that the FDA has verified that these products are at least safe and effective, and that's really not the case. When you see fantastic claims _ that's generally what they are."

The recall covers the following 14 products:

The following products are covered by this voluntary recall:

Hydroxycut Regular Rapid Release Caplets
Hydroxycut Caffeine-Free Rapid Release Caplets
Hydroxycut Hardcore Liquid Capsules
Hydroxycut Max Liquid Capsules
Hydroxycut Regular Drink Packets
Hydroxycut Caffeine-Free Drink Packets
Hydroxycut Hardcore Drink Packets (Ignition Stix)
Hydroxycut Max Drink Packets
Hydroxycut Liquid Shots
Hydroxycut Hardcore RTDs (Ready-to-Drink)
Hydroxycut Max Aqua Shed
Hydroxycut 24
Hydroxycut Carb Control
Hydroxycut Natural

I predict this will lead to mulitple lawsuits over the safety of the diet supplement for people who have possibly been injured as a result of using it. These lawsuits will likely be filed as a class action or, perhaps, individual lawsuits will be combined in a multidistrict litigation (MDL). A second kind of lawsuit will likely be filed for those consumers that weren't physically injured but who purchased an unsafe product and will not use any remaining product because of the recall. These consumer's are entitled to receive the purchase price returned becuase these sales likely violate various state's consumer protection laws. These claims can be brought by individuals or, perhaps, by states' Attorneys General.

I predict that hundreds if not thousands of lawsuits will be brought by users of Hydroxycut against the Canadian company lovate Health Sciences USA Inc.

If you want more information on the recall or your rights, feel free to contact us.

hans

Can Kentucky Plaintiffs Recovery Lost Punitive Damages in a Legal Malpractice Case?

Mon, 27 Apr 2009 08:00:00 EST

Recently, the Kentucky Justice Association asked us to write an article for the Advocate on legal malpractice. We choose to write on the issue of whether a Kentucky legal malpractice plaintiff can recover lost punitive damages in the legal malpractice lawsuit against the attorney.
The debate centers around whether these damages are recoverable since the purpose of punitive damages is to punish the wrongdoer. Defendants take the posistion that because the punitive damages in the underlying case (the one the lawyer malpractice) were meant to punish the original wrongdoer, forcing the lawyer to pay them does not punish the orignial wrongoer. This article explorers that concept and concludes that the fundamental purpose of KRS 411.165 as well as Kentucky punitive damage law will only be served if lost punitive damages are recoverable against a negligent attorney.
Hans

The Truth About TV Advertising Lawyers....

Thu, 23 Apr 2009 08:00:00 EST

Recently, I ran across a very interesting article about two Tennessee lawyers that are feuding. The issue is whether the TV advertising lawyer has the right to call himself a "trial lawyer" since everyone knows he doesn't try cases in the courtroom. We have the same issue here in Louisville, although there isn't any feud in the newspaper to speak of. Anyone that watches an hour of daytime television knows exactly what I'm talking about. You can't go 5 minutes without an ad for a lawyer (or even worse the ASK GARY chiropractor). Some of these lawyers aren't even from Kentucky, they live and work in Florida. They all advertise they can handle your car wreck case and get you a big check; however, those of us that practice in Louisville know that isn't necessarily true. You see, insurance companies know which lawyers try cases and which lawyers merely try to get quick checks. Who do you think they take more seriously? The simple fact of the matter is, all other things being equal, lawyers that know how to try cases will get the best results. Law firms that have 5,000 cases and a war room full of paralegals working on them will likely not get the same results. Harsh? You bet. Reality? You bet.
My suggestion, if you are thinking about hiring a tv lawyer, ask them when was the last time they tried a case. When was the last time the were in a courtroom arguing for their client. Ask them if they are going to farm you case out to another law firm if it doesn't settle pre-suit. Then make a decision as to whether this lawyer/law firm is going to get you the results they advertise on tv.
hp

New York Times Exposes Hired Gun Doctors

Fri, 10 Apr 2009 08:00:00 EST

Recently, the New York Times wrote this great article exposing what lawyers that represent injured people have known for a long time. The so-called "Independent Medical Exam" doctors are really hired to keep injured people from getting the compensation the deserve for their injuries.
Here in Kentucky, I see the same doctors, hired by the insurance companies, over and over and over again. There's a reason for that. The insurance company knows that these doctors will say the injured person a) was never really injured, or b) they injury wasn't very severe and they should have recovered in 4-6 weeks. This is especially true in car wreck cases. So much so, that we have started calling them what they really are, Defense medical exams. There is nothing "independent" about them.
hp

How Lawyers Can Legally and Ethically Steal From Clients....

Thu, 26 Mar 2009 08:00:00 EST

Well, its happened again. I was contacted by a potential client that hired a lawyer to handle a personal injury case, the lawyer malpracticed the case and, surprise surprise, the lawyer doesn't have any insurance. The client's personal injury case was a good one and the lawyer simply didn't know the time limitations on filing the suit. It's forever lost. So, in my opinion, the lawyer has stolen the value of that case from his client. And, to top it all off, the lawyer's failure to carry insurance adds insult to injury.
Why does the Kentucky Bar Association, or any state's bar association for that matter, not make legal malpractice insurance MANDATORY? At the very least, make lawyers disclose to clients that they don't have any insurance. At least that way the client can make an informed decision about whether this is the lawyer they want to hire.

Based on this article from 2008 and this article from 2006 only Oregon, has made legal malpractice insurance mandatory. About 22 other states have made lawyers disclose whether they carry insurance or not--but sometimes they only have to disclose to the Bar, not clients. Worthless.

So, what's the deal Kentucky? Are we going to let lawyers continue to represent people without being financially responsible when they malpractice, or are we going to continue to allow them to have a license to steal?

Hans

Jury Awards $24 Million in Truck Wreck Case

Wed, 25 Mar 2009 08:00:00 EST

$24 million award in fatal truck crash

A Will County jury has awarded nearly $24 million to families of two people killed and another seriously injured when a truck crashed into a line of cars on Interstate Highway 55 near Plainfield in April 2004.

Jurors on Friday issued the judgment—the highest verdict amount in a civil case in Will County in at least 50 years—against C.H. Robinson Worldwide, a Minnesota freight broker that had contracted with the truck driver, De An Henry of Utah.

Landmark $11 million Dolllar Nursing Home Verdict

Tue, 24 Mar 2009 08:00:00 EST

PHOENIX, March 20 /PRNewswire/ -- An Arizona jury today awarded a landmark verdict of $11 million to the widow of a 36-year-old man with traumatic brain injury who died after ingesting foreign objects while in the care of Liberty Manor Residency, a Phoenix assisted living facility. The verdict included $2 million for the decedent, $5 million for the wife and $4 million in punitive damages. It was the largest verdict ever awarded against an assisted living facility in the United States.

"I want this to be a lasting victory for all individuals with TBI or other disabilities living in assisted living centers or group homes," said Lydia Scherrer, widow of Earl Scherrer, who died May 7, 2006, at the age of 36.

Earl Scherrer suffered a severe traumatic brain injury as a result of a car accident in 1996. He lapsed into a coma and was not expected to recover. Despite doctors' assessment that Mr. Scherrer's condition was permanent, Lydia Scherrer refused to disconnect her husband's life support. Earl Scherrer remained in a coma for 16 months before he began to slowly emerge. With his wife's nurturing and support, he slowly started to speak, albeit slowly. Mrs. Scherrer worked with her husband day after day, using first-and second-grade reading and math textbooks and other elementary learning tools to stimulate his brain function and coax him to reach his full potential.

Lydia Scherrer devoted many hours per week to her husband's recovery, but she also had to work and was forced to turn to assisted living and residential facilities to provide the 24-hour care her husband needed. For years, she visited him faithfully on her days off, every Tuesday and Wednesday, checking him out of the facility and taking him home.

On April 7, 2006, Mrs. Scherrer placed her husband in Liberty Manor Residency, a facility that purported to provide 24-hour supervision of its residents. One month later - on May 7, 2006 - she received a call saying her husband had been vomiting. Mrs. Scherrer rushed over to Liberty Manor, brought her husband home and gave him a bath. Within a matter of minutes, he began vomiting black matter and died in her arms.

Autopsy results showed a number of items - including plastic bags, unopened catsup packets, candy wrappers and paper towels - were found in Earl Scherrer's stomach and small intestines. The medical examiner determined these foreign objects were significant contributing factors to his death. The autopsy read in part, "hypertensive heart disease due to mechanical obstruction of the GI [gastrointestinal tract] from the foreign objects."

Lydia Scherrer, represented by Craig Knapp, of the Scottsdale law firm of Knapp & Roberts, brought claims against Liberty Manor for abuse and neglect, wrongful death and punitive damages.

At trial, it came to light that Liberty Manor made numerous false entries in its charts with respect to Earl Scherrer's care, including notations of care on days when Mrs. Scherrer had checked him out of the facility. Liberty Manor was also unable to produce Mr. Scherrer's alleged caregiver, an employee named Raul.

"Lydia Scherrer did not walk away from her husband, in life or in death," said her attorney, Craig Knapp. "Her hope is that this verdict will force the assisted living facility industry to set and meet higher standards of care for their residents, resulting in enhanced protections for the defenseless individuals trusted to the care of others.

$65 Million Dollar Semi-Truck Wreck Verdict

Thu, 19 Mar 2009 08:00:00 EST

BARTOW, FLORIDA – A Polk County jury awarded a 21-year-old woman $65 million in damages Wednesday in a personal injury lawsuit against a trucking company.

“Trucking companies should get the message that they need to follow safety regulations designed to protect the public,” said Tampa attorney Jim Freeman, of Wilkes & McHugh, P.A. “This accident was preventable if the driver only waited for a clear view before turning.”

On Aug. 21, 2007, Kendra Lymon was a normal 19-year-old woman whose life was shattered when an 18-wheeler, owned by Bynum Transport Inc., T-boned her little Dodge Neon at the intersection of State Road 17 and State Road 64.

Kendra had no pulse when emergency personnel arrived at the accident scene. The lack of oxygen to her brain caused parts of it to die, and she suffered brain damage. She was in a coma, and hospitalized at Tampa General Hospital for months.

Today, she can’t speak. She can’t eat without assistance. She can’t control her bladder. She has trouble walking and sometimes needs a wheelchair. She needs around-the-clock care and continued rehabilitation, including physical, occupational and speech therapy.

Kendra was a beautiful young woman who knew what she wanted and worked hard to get it. She was a good student in high school, who participated in drama club and helped care for her siblings while their mother worked. Kendra loved to read and could speak six languages.

After graduating a year early from Hardee High School, she enrolled in South Florida Community College. She wanted to be a psychologist and was the first person in her family to attend college. She was about to enter her second year there when the accident happened.

Now she requires care and supervision 24 hours a day, seven days a week – and will need that for the rest of her life. Her medical bills alone are estimated to be more than $24 million over the span of her life, according to experts.

“She has suffered these terrible injuries needlessly,” Freeman said. “Kendra Lymon is one of the most deserving clients I’ve had in 30 years of practice.”

The defendants, Bynum Transport Inc. and driver Robert Bohn, tried to blame the accident on Kendra. Bohn claimed he had a green arrow, but eyewitness Ralph King said Kendra had a green light and wasn’t speeding. King said she tried to turn to the right, but by the time the truck entered her lane, there was no time to avoid it.

Bohn was fresh off a 24-hour shift as a full-time battalion chief for Polk County Fire Services when he headed to Bynum Transport Inc. for his part-time gig. Just after 8:30 a.m., he picked up a red 1997 Freightliner tractor and 2004 trailer, which together weighed 28,000 to 30,000 pounds. The plan was to haul a load of juice to Georgia that day to make some extra money.

But Bohn didn’t have 10 hours of off-duty time before driving the Bynum truck that day. The Federal Motor Carrier Safety Rules require such a break because driver fatigue is biggest cause of truck accidents.

And Bynum Transport, where Bohn had worked part-time since 1993, didn’t have any system to crosscheck what the driver told them. They didn’t monitor Bohn’s hours of rest. The Driver’s Log he filled out the morning of the accident shows zero hours of work for each day in the week before the accident, despite the fact he had just finished a shift at the fire department. Federal regulations consider that or any other work the same as driving.

As Bohn approached the intersection of state roads 17 and 64, there was a tractor-trailer in the opposite turn lane, blocking Bohn’s view. Bohn turned left anyway, and he plowed into Kendra’s car on the driver’s side, crushing it and sending it spinning off the highway.

The Lymons, represented by Wilkes & McHugh, P.A. attorneys Jim Freeman and Bennie Lazzara, sued Bynum Transportation Inc. and the truck driver, Robert Bohn, for negligence.

The trial, which lasted over a week in the Tenth Judicial Circuit Court in Polk County, concluded Tuesday. The jury came back Wednesday with a unanimous decision: Jurors found the defendants were 100 percent at fault in the accident and awarded $65 million to the Lymons.

“With this verdict, the family – including her mother, uncle, aunt and siblings who have been caring for Kendra – can now afford to get her the professional help she needs,” said Tampa attorney Bennie Lazzara. “Doctors say with proper medical care, Kendra will have a normal life expectancy.”

Hans

Kentucky Supreme Court to End Inequity Dealing With Loss of a Spouse (Hopefully)

Mon, 16 Mar 2009 08:00:00 EST

The following article appeared in yesterday's Lexington Herald Leader

Ending an inequity
court should right wrong brought to light by 5191 crash survivors
LARRY DALE KEELING HERALD-LEADER COLUMNIST

FRANKFORT - Kentucky statutes seem to say clearly that a surviving spouse may seek damages for loss of companionship (consortium, in legalese) in wrongful death cases. "Either a wife or husband may recover damages against a third person for loss of consortium, resulting from a negligent or wrongful act of such third person," KRS 411.145 says in part.

But Kentucky case law holds just the opposite. Prevailing case law allows a parent to sue for loss of consortium when a child dies because of an accident or negligence. It allows a child to seek damages for that reason when a parent is the victim.

Even a spouse can claim such damages if their mate survives the incident and remains injured. However, that same spouse cannot ask for post-death damages, Kentucky courts have ruled despite the fact that there are no such limitations in the language of KRS 411.145, enacted in 1970.

But the Kentucky Supreme Court now has an opportunity to correct what strikes me as a nonsensical inequity in our state's case law. The court heard oral arguments Wednesday in a case involving the death of an Ohio County woman in which post-death loss of consortium is a prominent issue.

Since justices and judges assume the role of devil's advocate during oral arguments, one should never jump too far toward any conclusion about how a case will be decided.

So I will limit my leap to saying some of the devil's advocacy going on in the courtroom Wednesday made a good argument for overturning Kentucky's case law.

Justice Will T. Scott, for instance, noted the "clear trend" in this country toward allowing post-death claims for loss of consortium. Surviving spouses can seek post-death damages in more than 40 states now.

Kentucky's case law adheres to English common law, which limited spousal claims for loss of companionship to the period of time between the injury and death. But KRS 411.145 contains no such limitation.

That prompted Justice Lisabeth Hughes Abramson to suggest that the state's courts have "grafted a common law restriction" on a statue that has no such restriction.

Justice Wil Schroder noted that an oft-cited 1969 court decision that adhered to the common law restriction on post-death claims may have been the impetus for lawmakers enacting the 1970 law that contained no such restrictions.

Justice Daniel T. Venters followed that same line by suggesting Kentucky courts just haven't paid attention to what the legislature did in 1970.

Venters also posited a scenario that, to me, most clearly demonstrates the utter absurdity of the current inequity in the law.

Under present case law, Venters noted, it would be in the financial interest of a spouse whose partner had been comatose for 20 years to keep that person alive as long as possible so the damages for loss of consortium continue.

To someone who desperately wants the plug pulled quickly if I ever go into a permanent vegetative state, the thought that Kentucky case law might encourage the husband or wife of a vegetative spouse to do otherwise to keep the money flowing is an abomination of reason.

Again, you can't judge a justice by his/her devil's advocate questions.

But the simple fact that the Supreme Court is hearing a case involving loss of consortium gives me hope that some extremely unjust case law may soon be overturned.

If that should happen, it would be at least a small, if belated, consolation for the surviving spouses of the Flight 5191 victims.

They came to Frankfort two years ago, asking lawmakers to tell the state's courts that KRS 411.145 means what it says. They had success in the House, which passed their proposed legislation 93-7. But they were met with insults in the Republican-controlled Senate, where they were accused of having a "lottery mind-set."

Senate Republicans, so often obsessed with marriage when it's about homosexual unions or adoptions by gay or lesbian couples, spat on marriage in 2007 with their insulting treatment of Flight 5191 widows and widowers.

Here's hoping the Kentucky Supreme Court rectifies that wrong with the case it heard Wednesday.

Reach Larry Dale Keeling at (859) 231-3249, 1-800-950-6397, Ext. 3249 or lkeeling@herald-leader.com.

Tue, 17 Feb 2009 08:00:00 EST

HOUSE BILL 318…

COMES UP FOR A VOTE

IN THE HOUSE HEALTH & WELFARE COMMITTEE

THIS THURSDAY FEB. 19

AT NOON IN ROOM 169

OF THE CAPITOL ANNEX

IN FRANKFORT

THIS IS THE BILL THAT WILL REQUIRE

ALL NURSING HOMES IN THE STATE

TO POST THEIR RATING

BY THE NEW FEDERAL FIVE-STAR RATING SYSTEM

IN A PROMINENT PLACE IN THEIR FACILITY.

HERE'S WHAT YOU CAN DO

TO HELP GET THIS BILL PASSED AND

OUT OF THIS COMMITTEE AND ON TO

A VOTE ON THE FLOOR OF THE HOUSE.

1. Call 1-800-372-7181 and ask the operator to send a message to the members of the House Health & Welfare Committee telling them that you want them to vote for HB 318.

The members of the Health & Welfare Committee are:

Rep. Tom Burch, Louisville (chair)

Rep. Bob DeWeese, Louisville (vice chair)

Rep. David Watkins, Henderson, (vice chair)

Rep. John Arnold, Sturgis

Rep. Scott Brinkman, Louisville

Rep. John "Bam" Carney, Campbellsville

Rep. Robert Damron, Nicholasville

Rep. Brent Housman, Paducah

Rep. Joni Jenkins, Shively

Rep. Mary Lou Marzian, Louisville

Rep. Reginald Meeks, Louisville

Rep. Tim Moore, Elizabethtown

Rep. Darryl Owens, Louisville

Rep. Ruth Ann Palumbo, Lexington

Rep. Susan Westrom, Lexington

Rep. Addia Wuchner, Burlington

2. If you are a constituent of any of these, be sure to tell them that in your message.

3. Follow up your call with a brief e-mail to each of them. You can get their e-mail address by going to

http://www.lrc.ky.gov/whoswho/email.htm

4. Attend the meeting yourself. Come early and meet every committee member telling him or her you would like their vote for HB 318. Don't be bashful. Legislators are very nice people and will be happy to talk to you.

And if you can, thank them afterwards for their support.

5. Call me if you have any questions……

BERNIE VONDERHEIDE

KENTUCKIANS FOR NURSING HOME REFORM

1530 Nicholasville Road

Lexington, KY 40503

Tel: (859) 312-5617

The Myths of Arbitration

Thu, 12 Feb 2009 08:00:00 EST

I hate mandatory arbitration agreements, especially in healthcare cases. Nursing homes force residents, or their family members, to sign these agreements before admission to the facility. They then injur the resident and hide behind the arbitration agreement to shield them from have a jury pass judgment on their care in an open courtroom that is subject to public scrutiny. Many of these companies, and the legislators whose pockets they line with campaign contributions, point to all sort of supposed "benefits" to arbitration. These benefits are mostly myths:

THE ARBITRATION FAIRNESS ACT
MYTHS AND FACTS

The Arbitration Fairness Act (AFA) would continue to allow voluntary arbitration while preserving the right to trial by jury. The bill would prohibit a corporation from forcing a consumer into a rigged mandatory arbitration system where the corporation hand-picked the arbitrator and all of the rules of the process before a dispute even occurred.

Myth: The AFA prohibits arbitration.
Fact: The AFA encourages voluntary arbitration; it only prohibits corporations from forcing mandatory clauses on consumers without them having a chance to negotiate the terms and often without them knowing about it.

Example: When admitting his father into a nursing home, Charles Miller Jr. signed a lengthy contract that, unbeknownst to him at the time, contained a binding mandatory arbitration clause. His father was not seen by a physician until three weeks after his admission, during which time he lost 19 pounds and suffered from dehydration and pneumonia, all of which led to his death. Charles Miller Jr. filed a claim against the nursing home corporation, but a court held that because he had signed this contract, he would be forced into arbitration for his claims against the nursing home, under the terms the nursing home corporation chose to put into the contract. Because Charles Miller Jr. had unknowingly signed a contract that contained a mandatory arbitration clause before any dispute had arisen, he was bound by its terms, no matter how unjust.

Myth: Most consumers favor binding mandatory arbitration.
Fact: Consumers favor voluntary arbitration and being given the choice to arbitrate. Would an employee with a claim against Halliburton want Halliburton deciding how her claim should be handled? Would a homeowner with a claim against his home contractor want the contractor deciding how his claim should be handled?

The Chamber of Commerce's recent study, which purported to show that voters did not support HR 3010, asked voters: "If you could choose the method by which any serious dispute would be settled between you and the company, which would you choose?" (Emphasis added.) But what they didn't tell these voters is that binding mandatory arbitration takes away a consumer's choice. Under the current system, consumers are not allowed to choose which option is best for them. They are not allowed to choose to file a claim in court nor are they allowed to choose who the arbitrator will be, or even what state they will have to arbitrate the claim in. Instead, they are forced into an arbitration system that is set up to favor the corporation and trample on the rights of the consumer. When consumers are given the choice to arbitrate after a dispute has arisen, they gain bargaining power and are better able to enter into an arbitration system that is fair.

Myth: Arbitrators are neutral, unbiased decision-makers.
Fact: Binding arbitration favors corporations because only corporations are repeat users of arbitration companies.
If an arbitration company wants to be used in a company's mass consumer or employment contracts, the arbitration company has a huge financial incentive to appear favorable to those businesses in arbitration proceedings. Why would a company choose an arbitrator that rules against them?

Myth: Arbitration is cheap and more accessible to consumers.
Fact: Arbitration is so expensive that most consumers will not be able to pursue their claim against a corporation because they can't afford the costs of the arbitrator.

Under mandatory arbitration clauses, consumers must pay steep filing fees just to initiate a case-seldom less than $750 – and pay their share of the arbitrator's hourly charges, which are routinely $400 or more per hour. All these fees must be deposited in advance and almost always amount to thousands of dollars. In addition, arbitration clauses often allow the corporation to choose the location, regardless of how inconvenient or costly travel will be for the consumer.

Myth: Arbitrators are like judges; they have to follow the law and publicly state the reasons they made their decision.
Fact: Arbitrators are not bound by any laws. They do not have to follow the law and they don't have make public or even provide to the consumer any explanation for ruling the way that they did.

Most arbitration clauses require that proceedings be kept confidential, even if the case raises important public policy issues. As a result, only the corporation can track past decisions and know which arbitrators have ruled for them. In addition, arbitrators do not set or follow judicial precedent, something our judicial system requires to ensure consistency and fairness in legal proceedings.

hans

Stripper Sues Employer Because She Got Too Drunk From Customer's Buying Her Drinks

Tue, 10 Feb 2009 08:00:00 EST

An update from the News of the Weird. A woman contends that her job as a stripper caused her to have a one-car wreck on her way home from work last year, according to a lawsuit filed in Jefferson County Circuit Court in Birmingham, Alabama.

Patsy Hamaker's suit says part of her job as a dancer at The Furnace club in Birmingham involved encouraging customers to buy her alcoholic drinks.

The suit alleges that managers at the strip club allowed her to leave work drunk one night last fall. She wrecked her car, resulting in serious injury, according to the suit.

Dancers receive a percentage of drink sales and make pretty good money doing so, according to the suit. On Oct. 17, Hamaker's sales were successful enough that she left work "in a highly intoxicated state," according to her suit.

"Defendants ... allowed a dangerous condition to exist by allowing said plaintiff to leave its establishment in such an intoxicated state while under said defendants' supervision and control," the suit says.

Management's negligence by allowing her to drive home drunk "was a proximate cause" of Hamaker's injuries, the suit says.

Hamaker seeks compensation for her injuries and additional money to punish the club. The case has been assigned to Judge Caryl Privett.

Hamaker's lawyer, Alan Smith, declined comment on where his client lives or whether she still works for the club.

"We won't talk about our client," Smith said. "We're not willing to talk about the case at this point."

As they say on one of my favorite Saturday Night Live Weekend Update segments...REALLY?!!!

Hans

Drunk Driver Kills Friend in 1993 and then Female UK Co-Ed in 2008

Mon, 09 Feb 2009 08:00:00 EST

A Kentucky man was recently convicted following a hit and run truck wreck that took the life of University of Kentucky Co-ed Connie Blount; however, this was not Shannon Houser's first run in with the law, nor is it the first time he has had a car accident that has killed someone.

In 1993, Houser was arrested and charged with DUI manslaughter following a car wreck on Russell Cave Road in Lexington, Kentucky that killed his friend . Houser received probation after his victim's parents wrote Judge Mary Noble asking for leniency.

In 2008 Shannon Houser struck Connie Blount, 18, with his pickup in the early morning of April 13. Blount, who investigators have said crossed Broadway against the light, had knelt down in the street, according to testimony. Houser then left the scene of the wreck.

Last Thursday, a Fayette County, Kentucky jury found Houser guilty of attempting to tamper with evidence, and not guilty of marijuana possession. Later Thursday, the jury unanimously recommended that Houser be sentenced to five years for the tampering charge and one year for leaving the scene of an accident. Judge James Ishmael set the sentencing hearing for March 6, 2008. The jury recommended a six year sentence.

It's unlcear whether Blount's family filed a civil suit against Houser, but if they did Houser could he held liable for compensatory damages (pain and suffering and the loss of Connie's power to labor and earn money) as well as punitive damages for Houser's gross negligence. As an interesting aside, in a civil case, it may not even be admissible that Hanover left the scene since it wouldn't be relevant to the question of whether Hanover was negligent in causing the wreck (according to testimony, Connie was kneeling down in the middle of the street when the wreck occured).

Based on Houser's criminal record, I doubt he would be the type of responsible person that purchased enough insurance to compensate for such an enourmous loss. This is a good example of why it's important to purchase Uninsured and Underinsured coverage of your own. This type of insurance protects you if someone else causes an accident and doesn't have enough insurance. Talk your agent about this after reading my Free Special Report; Secrets to Buying Car Insurance

hans

Revealed: Top Ten Worst Winter Driving Mistakes...

Fri, 30 Jan 2009 08:00:00 EST

1. Driving too fast for conditions. Regardless of whether you are in a four-wheel or two-wheel drive car, ice is ice and 4 wheels slide just as easy as 2.
2. Following other vehicles too closely.
3. Overcorrecting on ice. Learn how to control a skid. If you're traveling in a straight line, stay calm, take your foot off the gas and brake gently. Turn the steering wheel in the direction you want to go. If you slip on a corner, smoothly accelerate to transfer the weight to the rear wheels, which allows you to steer into the direction of the skid and regain control.
4. Driving while tired.
5. Driving with poor visibility.
6. Driving on back roads. When possible, stick to roads that are regularly treated.
7. Not getting the car ready for winter. Be sure to have tires properly inflated and some kitty litter or gravel for traction in case you get stuck in the snow.
8. Failure to carry emergency gear. warm clothing like coats, hats, gloves and socks; flares; chains; matches in a waterproof container; long-lasting food like nuts, jerky, dried fruit or granola bars; water; kitty litter or sand for traction on slippery surfaces; jumper cables; a shovel; a cellphone; a first-aid kit; a flashlight; and a spare tire
9. Leaving the car if you're stranded. If the car is stalled and there's no help in sight, stay with the vehicle (unless it's in the road). It'll be the warmest, safest place to wait until help arrives. Run the engine 10 minutes each hour for heat, and clear the exhaust pipe of snow, ice or mud. Place flares about 50 feet in front of and behind the car, turn on hazard lights and, if it's not snowing, raise the hood to indicate you need help.
10. Failing to check weather conditions before you leave. If you must travel in poor weather conditions, be sure to tell a friend or family member where you are going, what route you intend to take, and when you plan to arrive. That way, if something happens and you don't arrive on time, they'll know what route to check.

Hope these winter drving tips keep you safe and sound this season.

Hans

What Event Precedes The Day Most Car Wreck Occur...

Wed, 28 Jan 2009 08:00:00 EST

According to research from the University of California at Berkeley School of Public Health, the first snowy day of the year is substantially more dangerous for drivers than other snow days in terms of fatalities. Fatal accidents were 14% more likely on the first snowy day of the season compared with subsequent ones, according to research compiled from 1975 to 2000. Fatal accidents were 7% less likely on snowy days on the whole, when compared with good-weather days. The chances of having a fender-bender, on the other hand, increased.

Tomorrow we'll reveal the most dangerous driving day of the year.

Hans

Most Dangerous Month of The Year to Drive...

Tue, 27 Jan 2009 08:00:00 EST

As we told you yesterday, there are certain times of day you are more likely to be involved in a fatal car accident thatn others, but is there one month that is more dangerous than the others? According to the National Highway Transportation and Safety Administration, August had the most total deaths on the road in 2008, a 1.1% decline from 2007, according to NHTSA data. A total of 3,612 people died that month. NHTSA reports that when counted as fatalities per 100 million vehicles, August has a fatality rate of 1.42--an increase of 0.06 since 2007 and 0.10 points higher than September and June.

Tommorow we'll reveal what event precedes the day that most fatal car wrecks occur.

Hans

Was Your Credit Card Information Stolen...

Tue, 27 Jan 2009 08:00:00 EST

If you live in or around Louisville, Kentucky, you may have noticed a small blurb in the Courier-Journal about a local Jeffersonville, Indiana company called Heartland Payment Systems. It appeared on inaguration day, so I don't blame you if you missed it; however, it is a BIG STORY.... regardless of how little media attention it received.
Heartland Payment Systems, based in New Jersey, processes 100 million credit card transactions per month in its processing center in Jeffersonville, Indiana. And therein lies the problem. Heartland President Robert H.B. Baldwin Jr said the company found evidence last week that their had been an electronic "intrusion" occuring for the last several months. Baldwin indicated that both credit-card names and numbers were exposed.
ComputerWorld has a detailed article outlining how this data breach, which may be the largest in history by surpassing the TJX case, has sparked concerns in the industry over how to keep information safe and secure.
The Poppe Law Firm is local counsel in the Countrywide data breach litigation currently pending before an MDL in the Western District of Kentucky. The Poppe Law Firm is also attempting to assist individuals that have received notification that their credit or debit card information was accessed by virtue of the Heartland Payment Systems security breach. Please feel free to contact our office. 502-895-3400
hans

The Most Dangerous Time of Day to Drive is ...

Mon, 26 Jan 2009 08:00:00 EST

If you don't want to be killed in an automobile accident, there are certain times of day that you should avoid being on the road. According to the International Institute for Highway Safety, an average 6.6 people are killed between the hours of 5 p.m. and 6 p.m., and another 6.6 between the hours of 6 p.m. and 7 p.m. Those rates are the overall highest of any time during the day. In 2007, 14,055 people were killed in the 5 p.m. hour. But the hours between midnight and 4 a.m. have the highest number of fatalities when calculated as a percentage of the amount of people on the road, according to AAA. During that time, statistically speaking, 5.87 per 100 million people on the road will be killed.

Tommorow we'll reveal the most dangerous month of the year to drive.

Hans
ps Download our Free Report- What The Insider's Don't Want You To Know About Semi-Truck Wrecks.

Louisville Based Yum! Ordered to Pay $42 Million Dollar Verdict over Taco Bell Chihuahua Dog.

Sun, 25 Jan 2009 08:00:00 EST

"A federal appeals court Friday ruled that Taco Bell is solely liable for $42 million in breach-of-contract awards to two Michigan men who created the diminutive mascot that starred in the Irvine fast-food giant's hit $500-million advertising campaign in the 1990s." LA Times article here.

The business litigation dispute began in 1998 when Joseph Shields and Thomas Rinks of Grand Rapids, Mich., filed suit against Taco Bell, which is owned by Louisville based Yum! brands, alleging breach of contract.

Shields and Rink were in talks with Taco Bell advertising agents to adapt a Chihuahua for TV spots when, the men claimed in their lawsuit, Taco Bell took the idea to another ad agency, TBWA\Chiat\Day.

In 2003 a Michigan federal jury ordered Taco bell to pay $30 million for breach of contract and the federal judge tacked on nearly $12 million in interest. This prompted Taco Bell to turn around and sue TBWA claiming the ad company was responsible for using the disputed content.

On Friday, the 9th Circuit Court of Appeals ruled in favor of TBWA by ruling that Taco Bell, and not TBWA, was responsible for the wrongful use of the Chihuahua.

It is unclear at this point whether Taco Bell/Yum! brands will appeal. Warner Norcross & Judd, LLP, a large Michigan law firm, represented Rinks and Shields.
Hans
ps. Gidget was the name of the Taco Bell Chihuahua. The popular ads stopped running in 2000 freeing Gidget for further big- and small-screen fame, with roles in "Legally Blonde 2: Red, White & Blonde" and Geico insurance ads. She also appeared on "The Tonight Show With Jay Leno," during which she was given a choice between a Taco Bell chalupa and Kentucky Fried Chicken.

What is The Most Dangerous Day of the Year to Drive...

Sun, 25 Jan 2009 08:00:00 EST

July 4, Independence Day, historically has been the most dangerous day of the year to drive, according to the IIHS. In 2007, 926 people were killed in auto accidents on July 4.

Tomorrow we reveal "The Ten Worst Winter Driving Mistakes."

Hans

Countrywide Data Breach Litigation

Fri, 23 Jan 2009 08:00:00 EST

Last year one of the largest data breaches in history was discovered when a former Countrywide employee was arrested Aug. 1 and charged with illegally accessing the firm’s computers for more than two years. The information was being sold to mortgage brokers to be used as sales leads, federal authorities said in August. In an attempt to appease its customers, Countrywide offered security monitoring services; however they sent the notifications in what appeared to be junk mail envelopes and many customers probably threw them awasy. Countrywide also failed to notify its customers that it actually has an ownership interest in the security monitoring company.
The data breach led to multiple lawsuits against Countrywide and related entities in several different states and federal jurisdcitions.
Eventually, all of the lawsuits were consolidated into an MDL which was assigned by the head of the MDL litigation panel, Judge John Heyburn, to the Western District of Kentucky, Judge Thomas Russell.

We are local counsel for several of the out of state law firms. For more information, please contact us.

Hans

Progressive Launches "My Rate" in Kentucky...is it a Trick?

Mon, 19 Jan 2009 08:00:00 EST

The Louisville Courier Journal recently revealed Progressive Insurance Company's latest insurance plan in Kentucky. According to the article, Progressive is launching "My Rate" in Kentucky in order to allow drivers to hook up a device to their car to monitor their driving habits. The device will monitor how many miles are driven, when the car is driven, acceleration and stopping distance. Supposedly, "good drivers" will receive rate decreases.

My concern is that Progressive will use this "Big Brother" device to RAISE premiums. I guess we'll just have to wait and see how this plays out.

hans

10 Worst States for Overall Nursing Home Staffing...

Wed, 07 Jan 2009 08:00:00 EST

Following up on a prior post about the 10 Worst States for Nursing Home Nurse Staffing, I thought I'd follow up and reveal the 10 Worst States for Overall Staffing (not limited to nurses). Again, surprisingly, Kentucky was not in the top ten.

According to US News and World Report:

Nursing Homes: 10 Worst States for Overall Staffing

Low nurse turnover and high quality of nursing care are vital to the well being of home residents

By Avery Comarow , Megan Johnson

Posted December 19, 2008

Yesterday, the federal government rolled out a revamped and simplified approach to its evaluations of nursing homes, in order to make the onerous task of choosing the right one easier for families. Like the system the government uses for rating Medicare health and drug plans, the Nursing Home Compare site now gives nursing homes from 1 to 5 stars, overall and in each of three areas—performance in the latest three quarterly reports in 10 key quality measures, such as the percentage of residents with urinary tract infections; performance in the latest three annual health inspections; and adequacy of both overall staffing and staffing by registered nurses.

The following 10 states have the highest percentages of nursing homes with the worst rating of 1 star for adequate overall staffing.

Rank	State	Total, all nursing homes	1 star
1	Louisiana	269	62.5 percent
2	Georgia	342	57.6 percent
3	Tennessee	293	44.7 percent
4	Texas	1,042	41.4 percent
5	Virginia	263	39.2 percent
6	Indiana	482	38.6 percent
7	New Mexico	46	37.0 percent
8	West Virginia	123	33.3 percent
9	Missouri	489	31.1 percent
10	North Carolina	386	30.3 percent

Ten Worst States for Nursing Home Nurse Staffing

Tue, 06 Jan 2009 08:00:00 EST

Kentucky, like a number of other states, do not have mandatory minimum staffing requirements for nursing homes (if you want to do something about it, contact Bernie at Kentuckians for Nursing Home Reform).
So, I was honestly surprised when Kentucky didn't make the top ten list of worst states for nursing home staffing (but I bet they were number 11). That being said, here is the list as published by U.S News and World Report.

Nursing Homes: 10 Worst States for Nurse Staffing

How many hours a day are home residents under the direct care of a registered nurse?

By Avery Comarow , Megan Johnson

Posted December 19, 2008

Yesterday, the federal government rolled out a revamped and simplified approach to its evaluations of nursing homes, in order to make the onerous task of choosing the right one easier for families. Like the system the government uses for rating Medicare health and drug plans, the Nursing Home Compare site
now gives nursing homes from 1 to 5 stars, overall and in each of three areas—performance in the latest three quarterly reports in 10 key quality measures, such as the percentage of residents with urinary tract infections; performance in the latest three annual health inspections; and adequacy of both overall staffing and staffing by registered nurses.

The following 10 states have the highest percentages of nursing homes with the worst rating of 1 star for adequate staffing by registered nurses.

Rank	State	Total, all nursing homes	1 star
1	Louisiana	269	75.1 percent
2	Georgia	342	66.1 percent
3	Arkansas	225	54.7 percent
4	Texas	1,042	47.2 percent
5	Oklahoma	295	46.1 percent
6	Tennessee	293	41.6 percent
7	Missouri	489	41.1 percent
8	Virginia	263	37.6 percent
9	Indiana	482	32.6 percent
10	Alabama	218	31.7 percent

Article Reveals How to Reduce Teenage Wrecks by 16.5% in Just One Hour...

Fri, 02 Jan 2009 08:00:00 EST

Teenagers have the highest rate of car wrecks of any age group. Unfortunately, Kentucky is no exception. In fact, I was listening to the radio yesterday and the lead story was that nine teenagers had died this year in car wrecks in Bell County. Just think about that number, 9 teenagers from one small county in Kentucky in just one year. According to the 2006 census, the population of Bell County, Kentucky is only 29,000 people, of which there are only 6500 under the age of 18. The total population of Bell County High School is about 900, that means that 1% of the student body died in car wrecks in 2008. Tragic.

So, is there anything we can do to reduce the number of teenagers injured or killed in Kentucky in car wrecks and crashes? Well, according to a recent study published in the journal Journal of Sleep Medicine, there just might be. In the study, 10,000 Kentucky students from grades 6 through 12 where tracked on their sleep habits and daytime functioning, including auto mishaps. The surveys were completed twice -- first in 1998, when school started at 7:30 a.m., and then again in 1999, when the start time had been moved to 8:30 a.m.

According to the Louisville Courier-Journal story on the recent study "Letting teens sleep a little more by starting the school day a bit later may lower their odds for car-crash injury or death, a new study finds. The researchers found a 16.5 percent drop in auto accident rates for teen drivers when local high schools moved the start of classes from 7:30 a.m. to 8:30 a.m."

The study indicated that sleep deprivation causes 100,000 wrecks per year and that half of those are drivers 16-25. The study further found that "The average teenager probably needs at least eight hours and probably closer to nine hours of sleep, Danner said. And as little as an hour less sleep can have a cumulative effect. That means that by the end of the week, teens are as impaired as if they had stayed up for 24 hours straight, Danner explained"

hans
p.s. One of the reasons that the death rate of teens in car wrecks is so high is because they usually travel in groups. While the recent fatality in Bell County, Kentucky (Brooke Lambert a cheerleader at Middlesboro High School) was a single death, four teens died earlier in December in a collision with a coal truck on U.S. 25 East as a result of slick roads and four other teens died in a fiery crash on Kentucky 92 in January. Police said their car hit a tree.

Kentucky to Receive $2.3 Million From Drug Maker in Settlement

Thu, 01 Jan 2009 08:00:00 EST

Attorney General Jack Conway has announced the Kentucky will receive $2.3 million dollars in a negotiated settlement with drug manufacturer Cephalon. The settlement arises out of a lawsuit filed by several states Attorneys General that allege the drug company marketed their products for off-label uses to doctors. The drugs involved are Actiq, a painkiller, the anti-epilepsy drug Gabitril and the narcolepsy drug Provigil.
In October, Cephalon agreed to pay over $375 million to settle the civil case, $40 million in criminal fines and forfeited $10 million.
hp

How Some Madoff Investors May Recover Their Losses

Fri, 19 Dec 2008 08:00:00 EST

“Madoff did not pass due diligence for many European hedge fund companies,” Mr. Indjic said. “Experienced people know there are many ways to provide the kind of return stream offered by Madoff, almost like a bank account, and one of them is a Ponzi scheme.” Source: NY Times December 16, 2008.

By now, anyone with even passing knowledge of the stock market has shaken their head in disbelief that Bernard Madoff, the former chairman of the NASDAQ, could have pulled off the largest Ponzi scheme of all time.

While many of his private investors will likely never recover anything, some "lucky" investors that invested through a financial institution or mutual fund may be able to seek recovery from the broker dealer or investment house that placed them in the investment. That's because it appears that anyone doing any "due diligence" would have learned that Madoff's numbers simply didn't add up. According to the Times, "In early 2003, as word of Bernard L. Madoff’s apparent Midas touch spread among affluent Europeans and money managers, a team from Société Générale’s investment bank here was sent to New York to perform some routine due diligence. BNP Paribas has nearly $500 million in exposure to the Madoff firm. Its banking unit posted a $1.4 billion loss on Tuesday.

What it found that March was hardly routine: Mr. Madoff’s numbers simply did not add up. Société Générale immediately put Bernard L. Madoff Investment Securities on its internal blacklist, forbidding its investment bank from doing business with him, and also strongly discouraging wealthy clients at its private bank from his investments.The red flags at Mr. Madoff’s firm were so obvious, said one banker with direct knowledge of the case, that Société Générale “didn’t hesitate. It was very strange.”
(earlier this year, Societe Generale lost $7.1 billion due to a rouge employee investing in derivatives. I majored in finance and still don't understand derivatives...ever hear of the Black Scholes pricing model? It's more complicated, and about as useful, as Latin.)
Anyway, the investors that bought through a fund or private client group, bank or other financial institution may be able to recover from those instutions for their failure to do the type of investigation that Societe Generale did back in 2003.
I predict a bumpy ride for Wall Street.

Hans

USA Today Study Reveals Non-Profit Nursing Homes are Better

Thu, 18 Dec 2008 08:00:00 EST

USA Today has published the results of Medicare's 5 year long study to determine the best places to get nursing home care. They have used any easy to understand 5-star system similar to that used to rank hotels and restaurants.
You can read the article and look up a particular nursing home by following this link: USAToday Article and Results
The article concludes that non-profit nursing homes and nursing homes associated with hospitals consistently rank higher.
This begs the question that frustrates lawyers that handle nursing home negligence cases. Why doesn't the government demand transparency of corporations owning and operating nursing homes? Instead, they are allowed to participate in a "Corporate Shell Game" where multiples layers of corporations and LLCs are set up to hide assets from the individuals who are injured.

In a separate post, I'll discuss what I believe state and federal governments should be doing to protect our nursing home residents.
hans

Kentucky Court of Appeals Says "This Insurance Isn't Really Insurance"

Wed, 17 Dec 2008 08:00:00 EST

My friend, Kevin Burke recently summarized the recent Kentucky Court of Appeals Opinion that ruled that a religious medical expense sharing plan isn't insurance and isn't subject to state insurance regulations. I think this opinion sets a dangerous precedent and, more importantly, means that the people who have this plan have no legal safeguards in place if the plan refuses to pay their medical bills.

"What is insurance? This appeal attempts to answer that question in the context of a quasi-insurance medical payment program known as Medi-Share.

Medi-Share is a faith-based, medical payment sharing product sold by The American Evangelistic Association (AEA) and Christian Care Ministry (CCM). Medi-Share's Chairman and CEO is former insurance executive, John Reinhold. "Subscribers" complete a detailed application (including medical history) and agree to live by specific biblical and religious principles. If accepted, subscribers pay a monthly "donation" which is not tax-deductible as such per IRS regulations. According to Medi-Share's website (medi-share.org), a "donation" for a healthy married couple age 40-59 is $399 per month. Contributions are pooled, administrative costs (salaries, marketing, claims costs) deducted, and subscribers' medical expenses paid from the remainder. Claims adjusters review claims, negotiate payment to medical providers, and keep subscribers within the preferred provider network. Medi-Share asserts a right of subrogation and reimbursement for payments made. If a subscriber fails to pay the monthly donation, Medi-Share cancels the subscription or charges a late penalty. If a subscriber violates any condition of acceptance, Medi-Share terminates the subscription. Subscribers agree to arbitrate any disputes. Interestingly, Medi-Share explains in its terms and conditions that it is not insurance because it assumes no legal obligation to pay claims. Medi-Share's multi-million dollar marketing campaign touts Medi-Share as "biblical sharing" and the embodiment of Galatians 6:2: "Carry each other's burden, and in this way you will fulfill the law of Christ."

The Commonwealth filed suit in Franklin Circuit Court seeking a declaration that Medi-Share is "insurance" subject to regulation under the Kentucky Insurance Code. After a bench trial, the court ruled in favor of Medi-Share. The Court of Appeals affirmed in a 2-1 opinion. Judge Rosenblum found that "insurance" is an arrangement for transferring and distributing risk. Because Medi-Share does not guarantee payment, it never transfers or distributes risk, and therefore is not regulated by the Kentucky Insurance Code. Judge Rosenblum noted in dicta that Medi-Share is also exempt from the Kentucky Insurance Code under KRS 304.1-270(1) even if classified as insurance.

Judge Nickell concurred in part. He described Medi-Share as a "health care contrivance" which the Kentucky General Assembly should "rein in...before it runs wild, stampedes and tramples the rights and reasonable health care protection Kentuckians expect." However, Judge Nickoll agreed that Medi-Share is not insurance. He disagreed with Judge Rosenblum's dicta exempting Medi-Share under KRS 304.1-270(1). The statute requires a direct donation to a specified recipient. Because Medi-Share acts as an intermediary and takes out a hefty cut for administrative costs, it does not qualify for exemption.

Judge Thompson dissented. He noted that other states consider Medi-Share to be a form of insurance, and expressed his fear that similar programs "will be sold in Kentucky and remain unregulated in an insurance industry susceptible to unscrupulous tactics." Medi-Share bears all the indicia of insurance yet deliberately evades regulation by using unique terminology. Although Medi-Share does not technically share "risk" like other insurers, its actions and advertisements induce people to participate based on the belief of a shared risk. Judge Thompson noted that Medi-Share is not exempt under KRS 304.1-270(7).

Note: An open question is whether Medi-Share violates the Kentucky Consumer Protection Act. Medi-Share markets itself as a reliable alternative to health insurance and represents that "all eligible needs have been met." It communicates its reciprocal obligation to subscriber's through Galations 6:2 which mandates "carrying each other's burden." Despite the biblical quotation, Medi-Share carries no actual burden (i.e. risk) to evade regulatory protection for its subscribers." by Kevin Burke

You've Been SuperPoked and Served...Facebook Used To Serve Court Papers

Wed, 17 Dec 2008 08:00:00 EST

Sometimes lawyers have to serve important documents on people that don't want to be served. It could be a divorce suit, a doctor in a medical malpractice case, or any other number of unpleasant legal proceedings. One lawyer in Australia has found a new way to get reluctant defendants served with papers....Facebook! Here is the article.

Australia OKs Facebook for serving lien notice

By ROD McGUIRK, Associated Press Writer Rod Mcguirk, Associated Press Writer Tue Dec 16, 4:53 pm ET

CANBERRA, Australia – You've been "superpoked" — and served. A court in Australia has approved the use of Facebook, a popular social networking Web site, to notify a couple that they lost their home after defaulting on a loan.

The Australian Capital Territory Supreme Court last Friday approved lawyer Mark McCormack's application to use Facebook to serve the legally binding documents after several failed attempts to contact the couple at the house and by e-mail.

Australian courts have given permission in the past for people to be served via e-mail and text messages when it was not possible to serve them in person.

McCormack, a lawyer for the lender, MKM Capital, said that by the time he got the documents approved by the court late Tuesday for transmission, Facebook profiles for the couple had disappeared from public view.

The page was apparently either closed or secured for privacy, following publicity about the court order.

"It's somewhat novel, however we do see it as a valid method of bringing the matter to the attention of the defendant," McCormack said.

Despite the setback, McCormack said the Facebook attempt would help his client's case that all reasonable steps had been taken to serve the couple. A court is expected to settle the matter as early as next week.

Facebook has become a wildly popular online hangout, attracting more than 140 million users worldwide since it launched in 2004. Facebook friends can "poke" or "superpoke" each other — terms for giving someone a playful nudge.

In a statement, Facebook praised the ruling. "We're pleased to see the Australian court validate Facebook as a reliable, secure and private medium for communication. The ruling is also an interesting indication of the increasing role that Facebook is playing in people's lives," it said. The company said it believed this was the first time it has been used to serve a foreclosure notice.

The documents were sent last Friday after weeks of failed attempts to contact borrowers Gordon Poyser and Carmel Corbo at their Canberra home and by e-mail.

The Associated Press found Poyser, a retired 62-year-old, on Tuesday at home at the contested address.

He declined to comment on the record, citing the couple's stress at the prospect of losing their home of seven years only a week before Christmas. But he said he had privacy restrictions imposed on his Facebook page Tuesday only because of the media attention it had attracted.

"Because (otherwise) I'd get every man and his dog having a look," Poyser told The AP at his front door.

Lawyer and computer forensic expert Seamus Byrne said he was aware of only one similar case in Australia. A Queensland state District Court judge ruled in April against documents being served by Facebook because the option of contacting a person via a post office box had not yet been exhausted.

In the latest ruling, Master David Harper insisted that the documents be attached to a private e-mail sent via Facebook that could not be seen by others visiting the pages.

McCormack said he and a colleague found the woman's Facebook page using personal details that she had given the lender including her birth date and e-mail address. The man was listed on her page as a friend. Prior to Tuesday, neither had imposed security options that deny strangers access to their pages.

McCormack said he did not bother searching for the couple through any other social networking sites.

"It's one of those occasions where you feel most at home with what you know and I myself have a Facebook account," McCormack said.

I don't see a Kentucky court, or any United States court, anytime soon recognizing the use of Facebook to serve a defendant. But in the future, who knows. Behold the power of the internet....

Hans

Multiple Conflicts of Interest Before State Supreme Court...Will There Be Enough Judges Left?

Mon, 15 Dec 2008 08:00:00 EST

As reported in the Chicago Sun Times:

BY MAURICE POSSLEY Special to the Sun-Times mauricepossley@gmail.com

Four Illinois Supreme Court justices have been asked to withdraw from hearing an appeal of a legal-malpractice case against Corboy & Demetrio, one of the nation's top personal-injury firms, because the justices have gotten political contributions from the Chicago firm's attorneys.

The case involves a hotly contested case alleging that Corboy lawyers mishandled a lawsuit brought on behalf of the family of a Georgia woman who was killed and her two daughters who were injured in a car crash in 1995.

The motion seeking the recusal of Supreme Court Chief Justice Thomas Fitzgerald and Justices Anne Burke, Charles Freeman and Robert Thomas comes just after the U.S. Supreme Court agreed to hear arguments in a West Virginia case testing whether elected judges can take part in cases involving campaign contributors.

Because there are seven justices on the Illinois court, the motion sets up the possibility that, should the justices step aside, there would be only three justices left to hear the case -- rendering an appeal meaningless. The Illinois Constitution requires four votes for any Supreme Court ruling to be official, and the constitution has no provision for appointing interim justices should a justice withdraw.

Such a dilemma would be "absurd," attorney Charles Boyle noted in his motion.

The original lawsuit alleged that Corboy lawyer G. Grant Dixon III, who is no longer with the firm, and Robert Bingle, the firm's managing partner, failed to preserve the damaged vehicle and failed to investigate whether the wreck was the result of a manufacturing defect.

The Corboy firm admitted that the car-crash suit was dismissed because the firm failed to follow a court order but denied all other allegations against the firm. A judgment of $100,000 was entered against the law firm, and all other counts of the lawsuit were denied.

In a motion filed Nov. 24, Boyle asked the Illinois Supreme Court for permission to review the lower court's rulings and asked the four justices to step aside from hearing his petition.

The motion states that some members of the Corboy firm and two of the firm's experts in the car crash case have donated $52,000 to Fitzgerald, $33,000 to Thomas and $30,000 to Freeman. It says that while Burke has received $1,500 in contributions, the firm has donated $24,000 to her husband, Ald. Edward Burke (14th).

While federal judges must disqualify themselves from any case in which they have any personal or financial interest, states generally have no specific criteria for campaign contributions.

In the West Virginia case, Justice Brent Benjamin won election after the chief executive of the Massey coal company contributed $3 million to his campaign and raised half a million more -- amounting to 60 percent of the justice's campaign funds. After the election, Benjamin twice cast the deciding vote to set aside a $50 million judgment against the coal company. (Massey Coal has its own problems and its own legal malpractice case against a kentucky law firm, see our previous blog entry)

Attorney Michael Reagan, representing the Corboy firm in the case, said the amounts in the Illinois case are "ordinary campaign contributions" that are a "fact of life in a democracy."

Maurice Possley is a Pulitzer Prize-winning journalist who recently left the Chicago Tribune. He worked for the Chicago Sun-Times from 1978 to 1984.

New Federal Safety Rules Target Medically Unfit Semi Truck and Bus Drivers.

Mon, 15 Dec 2008 08:00:00 EST

Because Louisville, Kentucky contains a several major interchanges (I-64 aka spaghetti junction, I-65 aka Martin Luther King Highway. I-264 aka watterson expressway, and I-265 aka Gene Snyder Expressway), we are home to lots of semi-truck wrecks. What most people don't know is that semi-truck drivers traveling between states (and sometimes even when they stay in the same state) are governed by the Federal Motor Carrier Safety Administration. This federal agency writes the rules and regulations that govern commercial vehicles, including tractor-trailers, tour buses, and the like.
Unfortunately, we often find that many commercial truck drivers have medical conditions that should preclude them from having a commercial driver's license (CDL). Often times these medical conditions make it unsafe for the driver to operate a commercial vehicle.
These medical conditions often go un-recognized by the driver's employer and the state because their isn't any consistency in the reporting requirements between the state and federal government.
That was the case until now. Effective January 1, 2009, the states and the federal government will have a link commercial truck and bus driver's licenses with their medical examination certificates. Here is a portion of the release from the FMCSA website: "FMCSA today issued a final rule that will require states to merge the commercial driver’s license (CDL) and the driver’s medical examination certificate into a single electronic record. When fully implemented, the new combined CDL will streamline record keeping obligations for the states and CDL holders, while providing instant electronic access to the CDL holder’s medical certificate by state and federal enforcement officials. In addition, the rule requires states to take enforcement actions against CDL holders if they do not provide medical certification status information within the deadline."
While this is certainly a step in the right direction, it doesn't go far enough. Their is still no requirement that drivers be screened for chronic obstructive sleep apnea, a common condition among truckers, that causes or contributes to a number of fatigue related crashes every year. It also does not require the state medical examiner's to obtain copies of the driver's medical records and review them. Both of these things would certainly contribute to making our roads safer by ensuring that driver's with certain medical conditions aren't allowd to operate large commercial vehicles, in Louisville or anywhere.

hans

State Legislator Tries to Make It More Difficult to Sue ER Doctors

Fri, 12 Dec 2008 08:00:00 EST

Fortunately this isn't a story about a Kentucky lawmaker (but it very well could be considering who our senate leader is and the fact he has made tort reform one of his primary objectives).
An senior Arizona state senator is introducing a bill to make a emergency room patient prove medical negligence by a "clear and convincing" standard.
While this may not seem significant, it is. In Arizona, like Kentucky, requires a patient prove a doctor committed malpractice. The standard is "more likely than not." Even with this standard, physicians win negligence suits 80-90% of the time. The "clear and convincing" standard is significantly higher. The standard is usually reserved for situations that go beyond mere negligence, were the plaintiff must prove the at fault party did something more than simply "make a mistake."
If a jury were to have to find negligence by a "clear and convincing" standard, I hate to see how many victims of medical malpractice would go without justice. I dare say a lot.
hans
p.s. want to know the difference between malpractice and negligence, check out our FAQ section

Fri, 12 Dec 2008 08:00:00 EST

A Texas appellate court has ordered a new trial in a Vioxx case that originally rendered a $7.75 million judgment in favor of the plaintiffs. The three-judge panel of the Texas 4th Court of Appeals, earlier this year, overturned the initial verdict after finding that there was insufficient evidence Vioxx was to blame for the death of Leonel Garza. The new trial could be held as early as next summer, an attorney for the plaintiffs said.

hans

Duke University Sues Its Own Insurance Company for Refusing to Pay Claim

Wed, 10 Dec 2008 08:00:00 EST

Anyone that follows sports, and many who don't, will probably remember the Duke University mens' Lacrosse team scandal. According to a North Carolina newspaper, Duke has now been forced to sue it's own insurance company, National Union Fire Insurance Co., (an AIG affiliate) for refusing to provide insurance coverage and pay the damages that Duke paid to those players to settle the players' lawsuits against the University. The lawsuit is likely a combination of breach of contract and insurance bad faith.
"Because National Union has not paid, Duke has been forced to bear the full financial impact of its own defense,' Duke attorneys wrote in the lawsuit.
According to The Herald Sun, the insurer has refused to reimburse Duke for legal bills of $11-million because it believes the university’s policy is capped at $5-million. D uke's demands are considerable: it wants National Union to "advance and/or pay all of Duke?s Defense Costs (as defined in the insurance policies) for the Underlying Claims and the full amount of Duke?s settlement with certain claimants," and "a declaratory judgment (i) that National Union is liable to advance the costs for any future defense of Duke in connection with the Underlying Claims, and (ii) that National Union is liable for any reasonable settlement entered into by Duke in the Underlying Claims and/or any judgment entered against Duke in the Underlying Claims."

hans

Assigned Bad Faith Claim Results in $9.8 Million Verdict Against Atlantic Mutual Insurance

Tue, 09 Dec 2008 08:00:00 EST

A federal jury found that Atlantic Mutual "acted despicably and with malice and oppression in wrongfully refusing to settle" a personal injury case involving Harold Leon Bostick in 2002.

Bostick, who served in the Marine Corps from 1991 to 1994, was an amateur weightlifter and bodybuilder prior to his accident. He had earned a master's degree in business administration from Rice University in Texas and was attending law school at Pepperdine University at the time of the injury.

Bostick was doing squat presses when the weights fell on him and broke his neck. The weight machine Bostick was using didn't have a safety harness that would have prevented the injury. Bostick sued Flex, the manufacturer of the machine, and Gold's Gym. Gold's settled for $7.2 million. Bostick learned that Flex only had a $1 million insurance policy through Atlantic Mutual. Bostick offered to settle for that amount; however, Atlantic never even responded to the demand. A jury trial followed, and the award was $16.2 million. Because Atlantic exposed Flex to a verdict in excess of its insurance policy, Flex assigned its bad faith cause of action to Bostick.

Assignements such as this are not uncommon in cases where the damages are extremely high and the insurance coverages are limited. The defendant's insurance company has three duties in this situation: (1) provide a defense, (2) evaluate the case and, if possible, resolve the case within the policy limits, (3) advise the insured of the risks of proceeding to trial and the personal exposure that may arise if the verdict exceeds the policy limits, known as an excess verdict. If the insurance company fails to do any of these things, and a verdict exceeds the policy limits, the insured can sue its carrier for unfair claims handling, also known as bad faith. Following an excess verdict, the insured will usually try to get the inured person to agree to accepting the insured's potential bad faith claim in exchange for an agreement that the injured person will not attempt to collect the judgment from the insured but will instead seek to recover the money from the insurance company. The original injured party then stands in the shoes of the insured and brings the first party bad faith claim against the insurance company. Not many of these cases ever reach a jury verdict as most are resolved prior to trial.

To learn more about bad faith, be sure to watch our Bad Faith Video

hans

Radcliff Man Dies in Fatal Louisville Wreck With Drunk Driver...why his estate might not have a case

Mon, 08 Dec 2008 08:00:00 EST

According to the News Enterprise, a Radcliff, Kentucky man died Friday in a fatal car crash on the Gene Snyder in Louisville.. Even though the other driver was intoxicated, the deceased's estate may not have a good case against the drunk driver. That's because the Radcliff man was not wearing a seat belt and was ejected from the car.
Kentucky has a seat-belt defense that prevents someone from recovering for their injuries if a wearing a seat-belt would have prevented them
In order to succeed, his estate will have to prove that even if he had worn a seat belt, he still would have suffered severe injuries or death. In situations such as this, we usually hire a biomechanical engineer and an emergency room physician to evaluate the forces and injuries to determine whether a seat belt would have prevented the injuries or not. Tough case.

hans

Kentucky Truck Driver Turns Himself In After Fatal DUI Wreck...

Sun, 07 Dec 2008 08:00:00 EST

On December 4th, I posted about a settlement arising out of a semi-truck wreck that paralyzed a young boy. The driver of the truck was under the influence of drugs. When I posted the entry, I didn't realize that just the day before, a kentucky truck driver had been charged in a fatal truck wreck that took the life of an Indiana man. The Kentucky truck driver tested positive for Cocaine.

According to an Evansville television station, a truck driver involved in a fatal collision in July turned himself in December 3rd on a charge of operating a motor vehicle while intoxicated causing death. Delbert Majors, 53, of Corydon, Ky., was being booked into the Vanderburgh County Jail at 9:30 a.m. Bond was set at $20,000 as part of a warrant issued for his arrest. Initial toxicology tests conducted after the wreck revealed Majors had cocaine in his system, Evansville Police Department spokesman Steve Green said. Evansville resident Raymond Ferrari, 56, was killed in the July 29 accident on Evansville's West Side. Ferrari, driving a Pontiac Sunfire, was northbound on Rosenberger Avenue and trying to turn left onto the westbound Lloyd Expressway. A Robinson Engineering oil-rigging truck, driven by Majors, was traveling east on the Lloyd through the intersection. Green said authorities determined Majors ran the red light. "Investigators say toxicology reports now show Majors had cocaine in his blood at the time of the accident July 29th. He crashed his oil truck into Ferrari's car."
According to the report, Ferrari's estate has filed a civil lawsuit against Robinson Engineering.
What will be interesting is to see whether Majors has any history of abusing drugs or alcohol and whether Robinson Engineering have any policies and procedures to test drivers periodically to ensure they are not abusing substances.

To learn more about semi-truck wrecks, download our free E-Book: What The Insiders Don't Want You To Know About Semi-Truck Wrecks.

You can also watch our video titled: The Six Things You Must Know If You've Been In a Car or Semi-Truck Wreck.
hans

Paralyzed Girl Settles Case Against Beer Vendor for $25 Million

Sat, 06 Dec 2008 08:00:00 EST

Nine years ago, a two-year old girl was tragically injured in a car wreck caused by a drunk driver. Antonia Verni was paralyzed and rendered a quadriplegic as a result of a drunk driving accident. The man behind the wheel, Daniel Lanzaro, who slammed his pick up truck in to the Verni family’s vehicle, had a blood alcohol level of 0.226, nearly three times the legal limit of 0.08. Lanzano admitted to having 16 beers at a football game. The Verni family sued Aramark, which manages the beer sales at the stadium.
A jury returned a verdict in favor of the family and against Aramark for $105 million. The court of appeals reversed and remanded the case for a new trial. A judge recently unsealed the settlement and disclosed it was $25 million.
This case highlights the importance of finding and holding all negligent parties responsible. Some attorneys may have taken this case and seen it simply as a case against a drunk driver, who probably only had a limited amount of insurance. This type of thinking would be short-sighted. Lawyers have to be willing and able to look past the obvious and determine who was really at fault. Here, it was the beer vendor's employees that served Lanzaro when he was visibly intoxicated. The employees violated numerous policies and procedures. Hopefully, this settlement will provide the lifetime of car that little Antonia needs.

hans

Louisville Hosptial Baptist East Cited By Medicare In Suicide Death

Sat, 06 Dec 2008 08:00:00 EST

Medicare has threatened to stop federal funding to Baptist Hospital East following a patient's suicide last month. State inspectors concluded that Baptist Hospital "failed to assure this patient's safety." The patient has only been identified as a Jeffersontown (a suburb of Louisville) man whose son had passed away and going through a divorce.
The citation stems from the hospital's knowledge that the patient had expressed a desire to drink himself to death and was depressed over his circumstances. Even though two chaplains talked with the patient and concluded he was in a "critical and severe situation, the hosptial failed to place him in a psychiatric unit or under suicide watch. The state determined that the hospital's failure to include steps in its written care plan to address his psychiatric concerns was a violation of its duty to its patients and such conditions "pose an immediate and serious threat" to patients.

Baptist will probably not lose any funding; however, this may not be the end of the issue for Baptist.

These violations could lead to civil liability if the family chooses to file a lawsuit. Hospitals owe a duty to their patients to proivde appropriate treatment, including protecting a suicidal patient from him or herself. If a hospital violates its own policies and procedures- or fails to act like a reasonable hospital would in the same situation- and an injury or death results, the hospital is responsible for the harm. Because the patient was only 56 years old, he was probably still working. This means the man's estate can recover the reasonable value of what he would have earned over his lifetime (known as wrongful death) as well as a claim for pain and suffering (known as personal injury). It is unclear from the article whether the man had any children under 18, but if he did then they would have a claim for the loss of love and affection of their father. A child's consortium claim is measured from the date of injury through the 18th birthday. The child's claim can be brought any time before his or her 19th birthday. The wife also has a claim for loss of love and affection; however, it would likely be of very limited value for two reasons. First, because they were already going through a divorce, it would be difficult to argue that there was any loss of love and affection. Second, a spousal loss of consortium claim in Kentucky is limited to the time of injury until the time of death. Here, that period of time would be only seconds or minutes. Kentucky courts have held that a spousal consortium claim could not be brough in a case where the time between injury and death was only an hour. Unless and until the law in Kentucky recognizes a spouse's right to claim a loss for the loss of love and affection after the death, we are severly limited in the claims we can make. That being said, this exact issue is going to be addressed by the Kentucky Supreme Court in 2009.

hans

Jury Awards $23.5 Million in Semi Truck Wreck Lawsuit

Thu, 04 Dec 2008 08:00:00 EST

According to the Kansas City Star, a jury in Wichita rendered a $23.5 million verdict against a truck driver and her employer, Swift Transportation for their role in causing a horrible truck wreck in 2006.

According to the lawsuit, truck driver Robyn Getchel missed her turn while trying to pull into a rest stop and was trying to back-up on the highway when she was rear-ended by another semi. The driver of the second rig, Dennis Bottorff, was killed instantly and his passenger, Terry Frederick, sufered severe spinal cord injuries leaving him completely disabled.

Likely driving the liability in this case were the facts that: (1) the at-fault driver was inexperienced (only driving for about 6 months), (2) had failed her commercial license exam several times, (3) had a history of drug use and (4) tested positive for methamphetamine in a post-acident drug test.

Everyday, big-rig semi-truck accidents occur all over Kentucky because companies, more concerned with profits than people, put inexperienced drivers behind the wheel. The companies place unrealistic schedules on the drivers which often leads to the drivers abusing amphetamines to stay awake to drive longer distances and fudging log book entries so they can avoid the federally mandated rest periods. Companies and drivers that operate in this careless manner have to be held accountable, regardless of whether it's in Wichita, Kansas or Louisville, Kentucky.

Please download our free report on Semi Truck accidents here and watch our video on "The 6 Things You Must Know if You Have Been Injured in a Car or Semi-Truck Wreck".

hans

Why Corporations and Small Businesses Shouldn't Pay Lawyers by the Hour...

Wed, 03 Dec 2008 08:00:00 EST

I have to admit that in Louisville, I'm probably a rare breed. I handle business litigation cases on a contingency fee basis (or a hybrid hourly-contingency basis depending on what the client wants). I am a firm believer in the contingency system because it provides the most incentive for the lawyer to do the best job possible for the client without expending needless resources simply because the lawyer is paid by the hour.
I recently ran across the following article , expressing much better than I can, several reasons why corporations and small businesses should incorporate contingency fee contracts in their cases, regardless of how large they potential recovery may be.

hans

Kentucky Nursing Home Abuse Caught on Video Tape

Wed, 03 Dec 2008 08:00:00 EST

Those of us lawyers that handle nursing home abuse and negligence cases are always confronted with the problem that often the resident is unable to tell us what happened to them or who did it. That's the problem with nursing home abuse cases, the abuse doesn't occur when the family is around. This often leads to a problem proving the case. Some advocates of nursing home reform have called for video cameras to be installed in all facilities. This likely will never occure due to privacy concerns of other residents.
One Richmond, Kentucky family ignored those privacy concerns in favor of finding out what was going on with their loved one. According to the Lexington-Herald Leader, the Attorney General's office has opened an investigation into the care provided at a Richmond, Kentucky facility. "The investigation comes after the family of an 84-year-old resident hid a video camera in her room at Madison Manor in Richmond. The Lexington Herald-Leader reported that the videotape shows nursing assistants at Madison Manor physically abusing and taunting Armeda Thomas of Irvine and failing to feed and clean her. Madison Manor is part of the Richmond Health and Rehabilitation Complex, owned by Wisconsin-based Extendicare."
Don't even get me started on the corporate shell game these nursing homes play to insulate themselves from lawsuits for abuse of residents. That's a post for a different day.
If you're interested in learning more about nursing home abuse, click here to watch my recent video, or download my Free Report on What You Absolutely Positively Most Know Before Choosing a Nursing Home.

hans

Survey Finds Link Between Arrogant Doctors and ....

Tue, 02 Dec 2008 08:00:00 EST

According to a recent article in the New York Times, studies have now linked physician behavior and attitudes to poor patient outcome. For example, "A survey of health care workers at 102 nonprofit hospitals from 2004 to 2007 found that 67 percent of respondents said they thought there was a link between disruptive behavior and medical mistakes, and 18 percent said they knew of a mistake that occurred because of an obnoxious doctor. (The author was Dr. Alan Rosenstein, medical director for the West Coast region of VHA Inc., an alliance of nonprofit hospitals.) Another survey by the Institute for Safe Medication Practices, a nonprofit organization, found that 40 percent of hospital staff members reported having been so intimidated by a doctor that they did not share their concerns about orders for medication that appeared to be incorrect. As a result, 7 percent said they contributed to a medication error."

The article begins by recounting how a nurse knew her patient, a child with a shunt in his brain to drain fluid, was in trouble. She paged the on-call doctor who told her not to worry. She paged a second time and he told her that she wasn't a doctor and didn't know what to look for. The doctor ignored her third page. The nurse then called the child's treating physician at home who ordered the child rushed to emergency surgery.

These situations are not unfamiliar to attorneys that handle medical negligence cases. One particular area of concern is in obstetrical care. Generally, a labor and deliver nurse will be with the expecting mother. The labor and deliver nurse montiors the mother and child's vital signs. The most important vital signs are shown on the fetal monitoring strip. Sometimes the fetus can begin having problems in the uterus. One example is when the cord gets wrapped around the baby's neck. As a result, labor and deliver nurses must monitor the fetal strips for bradycardia and tachycardia.

When the labor and deliver nurse recognizes a problem with the baby, she must alert the obstetrician to the problem. Sometimes, the OB ignores the nurse, thinking the nurse is overreacting. This arrogance can lead to tragic consequences including death or injury (brain damage or cerebral palsy) to the child or mother.

We hope this study will empower nurse and other healthcare providers to be strong advocates for their patients and encourage doctors act as part of a the medical team and not mini-dictators. The stakes are too high not to.

hans

Kentucky Kingdom Case Settles for....

Sat, 22 Nov 2008 08:00:00 EST

Truth is, we don't know how much the case settled for. This settlement, like most, is confidential. This has been one of the most high profile cases in Louisville, and probably Kentucky, for a long time. It was also handled by one of the most successful plaintiff attorneys in the state, Larry Franklin.
Larry has won numerous multi-million dollar verdicts and focuses the majority of his practice on handling medical negligence cases and, more specifically, birth trauma cases.
I'm glad the family is finally able to put litigation behind them, there are never any winners when a child is injured, regardless of the settlement amount.
Here is the Courier Journal article
Hans

Infamous Local Lawyer Resigns

Mon, 17 Nov 2008 08:00:00 EST

You may have recently read about retiring Louisville lawyer Fred Radolovich who has been indicted on charges of perjury (lying under oath). Mr. Radolovich is no stranger to ethical and malpractice charges. In April 2006, Radolovich was sanctioned by a federal appeals court for filing a frivolous appeal. The 6th Circuit Court of Appeals said he filed an "incoherent brief" that contained "patent legal and factual inaccuracy." He was ordered to pay $9,500 in sanctions. He has now been found in contempt for failing to pay those sanctions. In early November 2006, in a different matter, five judges on the 6th Circuit said Radolovich did such a poor job investigating the background of his client, IN A DEATH PENALTY CASE, that he never even discovered his own client's real name. Radolovich's perjury was also charged with perjury for allegedly lying to the court in a hearing by saying he had handled six death penalty cases, four as a prosecutor in New York. Radolovich's former supervisor, from the New York County District Attorney's office, swore in an affidavit that Radolovich never handled a death penalty case while a prosecutor. The supervisor also said that Radolovich falsely claimed to have headed a special "organized crime unit" while at the New York DA's office. Additionally, the Courier Journal showed how Radolovich falsely claimed that he was a licensed barrister in England and was going to the World Court in the Netherlands to prosecute a Serbian war criminal. Last, but not least, Radolovich was sued by a Louisville surgeon, Johnathan Guarnaschelli, M.D., for filing a frivolous lawsuit. It seems that Radolovich filed suit against Guarnaschelli for medical negligence without any medical proof that Guarnaschelli had done anything wrong. For over a year, Guarnaschelli's lawyer requested Radolovich drop the suit because of a lack of evidence. Ultimately, Guarnaschelli's lawyer requested the court dismiss the case for lack of evidence. The court agreed to do so. Dr. Guarnaschelli sued Radolovich for wrongful use of civil proceedings. The jury agreed with Guarnaschelli and awarded him $12,000 in compensatory damages and $60,000 in punitive damages.

Former Kentucky doctor sued over 100 times-and is still practicing

Mon, 17 Nov 2008 08:00:00 EST

A former Kentucky doctor is facing more than 100 lawsuits arising out of an 8-month stint at a West Virginia hospital. According to the December 1, 2006 Lexington-Herald Leader, the former Kentucky doctor testified in a West Virginia courtroom on Friday. Associated Press writer Lawrence Messina wrote King testified "he has no fixed address, has not worked since early November and lost his tax records when his accountant's office burned down." Messina also recounted "Christopher Wallace Martin, the osteopath previously known as John A. King, also told Putnam County Circuit Judge Ed Eagloski that he has set up more than a dozen corporations, trusts and other legal entities since 1999. He then assigned them such assets as his Volvo autos and the $400,000 house he bought while at Putnam General. These various entities include a trust and a limited liability company in Costa Rica, a tax-exempt charity, and trusts named Bonemaker, Bonelover and Bonecrusher. He testified that most now have assets worth less than $10,000." Another article written on December1, by Associated Press writer Jay Reeves, reported King was also having problems in Alabama. He was fined $2,500 in Alabama "after medical officials determined he committed fraud to obtain a license..." Reeves also reported "King failed to reveal on his application that he was under investigation by medical officials in New York and Michigan, the board found, although he did report problems in West Virginia and Texas. Records show the Medical Licensure Commission of Alabama asked the board to revoke King's license, but members let him continue practicing." He was fired the following week for allegedly overdosing a patient. King's Kentucky license expired earlier this year. Contact Us Name:

Kentucky's Senior Judge Program sparks many objections

Mon, 17 Nov 2008 08:00:00 EST

Today's Courier Journal featured any interesting article by Andrew Wolfson about Kentucky's Senior Judge Program. The article focuses on the lack of a screening process like other states. The Senior Judge program allows former judges to work part time to help with the Kentucky court's growing caseload. The article reports that the program is open to all retired or defeated judges whose age and years of government employment (regardless of whether it was judicial employment) adds up to 75. The Senior Judge program does seem to be a good financial deal for Kentucky (the whole program only costs $550,000 a year, compared to the $300,000 cost of creating a new judgeship). That being said, the Wolfson points out that the lack of screening allows judges who were removed from the bench by the voters to remain judges. This seems contrary to the voter's intent. Wolfson uses as an example Judge Paula Fitzgerald who lost her re-election bid and routinely had the lowest ratings of all Jefferson County judges. I'm sure that a lot of lawyers who practiced in her court wish this was not the case. For the complete article, go here:

Jury hits State Farm with $2.5 million in punitive damages for denying Katrina claim

Mon, 17 Nov 2008 08:00:00 EST

On Thursday,a federal judge in Gulfport, Mississippi made a suprising move following closing arguements in one of the first cases to go to trial against an insurer for refusing to pay for Katrina damage. U.S. District Judge L.T. Senter Jr. took a portion of the case away from the jury and entered a judgment against State Farm. Judge Scenter ruled Thursday morning that State Farm is liable for $223,292 in damage Hurricane Katrina caused to State Farm policyholders Norman and Genevieve Boussards' home. Senter left it to the jury to decide whether to award punitive damages. And they did, to the tune of $2.5 million dollars. It is certain that this result, especially Judge Scenter's ruling, will send shock waves through the insurance community about the hundreds of remaining lawsuits. Judge Scenter's ruling and the jury's award of punitve damages should be a lesson to insurance companies everywhere. When policyholders suffer a loss, pay their claim. Do not look for ambiguities in the policy in an attempt to deny claims. Insurance companies should do the right thing. They have collected premiums, often times for years. When it comes to pay, they should do so without forcing their own policyholders to file lawsuits. Insurance companies are constantly telling the public that their are TOO many lawsuits. This case makes it obvious that insurance companies are part of the problem. If they want to put lawyers out of business, all they have to do is pay valid claims. Then their wont' be any reason to file a lawsuit at all. Sounds simple, huh. Here is a link to the story: http://www.cnn.com/2007/LAW/01/11/katrina.insurance.ap/index.html?eref=rss_us

Kentucky federal judge says local plaintiffs can proceed with suit against the Vatican

Mon, 17 Nov 2008 08:00:00 EST

Last week, Judge Heyburn ruled that a federal lawsuit filed against the Vatican can proceed. While Judge Heyburn dismissed a portion of the claims, he allowed several of them to proceed. He also seems to indicate that just becuase the case would not be dismissed right now, he promises to revisit the issue at a later date should the evidence warrant it. Many legal experts doubt the case will survive--that being said, I doubt many of them ever thought it would get this far. The lawsuit was brought by William F. McMurry, the same lawyer who brought the local lawsuits against the Archdiocese of Louisville. I worked with Bill on these case from day one. I can tell you without reservation that he is a brilliant strategist and will work tirelessly. Neither the Vatican or the legal scholars can afford to underestimate him. hp

Quotes about the recent State Farm bad faith verdict

Mon, 17 Nov 2008 08:00:00 EST

WHAT THEY'RE SAYING The policyholder won the first verdict Thursday in a Hurricane Katrina insurance case involving a home that was destroyed in the surge area. A jury awarded Biloxians Norman and Genevieve Broussard $2.5 million in punitive damages in their case against State Farm Fire and Casualty Co. Reactions to the decision: "Obviously, our hearts go out to the Broussards and everyone on the Coast who suffered a loss. But we were obviously surprised and disappointed by this ruling." - State Farm spokesman Fraser Engerman, who flew in from Bloomington, Ill., headquarters for the trial that began Monday. "We are very pleased with the verdict. Obviously, we have other trials coming up and we don't want to do anything to jeopardize those cases." - Broussard co-counsel Jack Denton, explaining why he would not elaborate. "It's a great day for South Mississippi." - policyholder Norman Broussard "What I hope we can finally do is get this thing in a position where they just agree to pay the money and pay it now. They're of course going to say, well if it's going to take people two to 10 years to get their money, we'll pay a lesser percentage now. They're going to use people's money and time against them. Hopefully we can reach something." - Attorney General Jim Hood, who is trying to negotiate a settlement with State Farm for Coast policyholders. "State Farm I suspect just assumed - and that's the operative word - that it was the hurricane surge, known as the 'efficient proximate cause' and therefore that would override the windstorm and would knock out 60 percent of the damages to the home. I am pleasantly surprised that the homeowners prevailed. I have not seen the decision but have read enough in trade journals and newspapers that I saw this coming. "The insurance companies owe a duty to the policy owner to be proactive and look for coverage, a way to pay the claim. In the real world, they kind of zero in on the exclusions and they adjust losses by way of exclusions rather than the insurance agreement, which says what they cover." - Clinton Miller of San Jose, Calif., author of "How Insurance Companies Settle Cases" and consultant to both insurers and policyholders on issues of bad faith. "Our hope is that State Farm will have a change of heart and go back to square one like they should and start readjusting the claims following the rule of law that Judge Senter has made." - Chip Merlin, lawyer for homeowners suing State Farm "I am pleased to see another policyholder find a resolution to their disputed claim, and am hopeful that this decision may help speed other resolutions to take place without the necessity of lengthy litigation and courtroom visits." - Mississippi Insurance Commissioner George Dale,who ordered insurance companies to adjust claims according to very similar standards the judge outlined in Wednesday's ruling "This is a loss for property owners along the coast of Mississippi ultimately. If it stands, this decision could well have negative repercussions obviously for the cost of insurance, but also the availability." - Robert Hartwig of the industry-sponsored Insurance Information Institute "That ripple effect is going to turn into a tsunami down here. I've very interested in repairs and that everybody gets back on their feet." - Contractor Phil Coburn, who, after hearing a State Farm expert testify that the wind wasn't strong enough to take down the Broussards' brick veneer, said the same thing happened to his neighbor behind Edgewater Mall, where there was no tidal surge. "I'm absolutely delighted. I think it will also cause a rapid settlement on a lot of the outstanding policy disputes. I think it is nothing but good news for the entire Gulf Coast." - Dr. Wesley McFarland of Bay St. Louis, who lives in a FEMA trailer while awaiting his day in court with State Farm The Broussards won the first verdict Thursday in a Katrina insurance case involving a home that was destroyed in the surge area. Reactions to the decision: "What I hope we can finally do is get this thing in a position where they just agree to pay the money and pay it now. They're of course going to say, well if it's going to take people two to 10 years to get their money, we'll pay a lesser percentage now. They're going to use people's money and time against them. Hopefully we can reach something." - Attorney General Jim Hood, who is trying to negotiate a settlement with State Farm for Coast policyholders. "I am pleased to see another policyholder find a resolution to their disputed claim, and am hopeful that this decision may help speed other resolutions to take place without the necessity of lengthy litigation and courtroom visits." - Mississippi Insurance Commissioner George Dale,who ordered insurance companies to adjust claims according to very similar standards the judge outlined in his ruling. "This is a loss for property owners along the coast of Mississippi ultimately. If it stands, this decision could well have negative repercussions obviously for the cost of insurance, but also the availability." - Robert Hartwig of the industry-sponsored Insurance Information Institute

Whistelblower case against MSD started Tuesday.

Mon, 17 Nov 2008 08:00:00 EST

A fellow attorney, and friend of mine, David Friedman started a federal whistleblower trial yesterday. You may remember David as the local lawyer who argued (and won) a United States Supreme Court case in 2006. In the whistleblower case, David alleges two former employees were terminated after complaining that a council member, his aid, and an MSD board member were using their influence to cut corners on a sewer project and to have excess dirt from the project delivered to political supporters. Based on the story, David has his work cut out for him. But he had his work cut out for him when he argued at the US Supreme Court, too. David doesn't shy away from un-popular cases or challenges. Here is the complete story: Ex-MSD workers' suit goes to trial Plaintiffs link firings to whistle-blowing By Joseph Gerth jgerth@courier-journal.com The Courier-Journal Two Metropolitan Sewer District employees were fired after they complained about "three politicians" meddling in a project, their lawyer told a federal jury in Louisville yesterday. But a lawyer for the agency said one of the employees was first disciplined because of her foul mouth and then laid off because she did little work. The other employee was let go because the project he was working on ended, the agency lawyer said. A U.S. District Court jury of seven women and three men is expected to hear evidence for the rest of the week in the trial of a lawsuit filed by former MSD environmentalist Sarah Lynn Cunningham and former project inspector Ron Barber. Cunningham and Barber say they were fired after they complained that Metro Councilman Bob Henderson; his legislative aide, Larry Mattingly; and former MSD board member Bill Gray used influence to cut corners on a sewer project and to have excess dirt from the project delivered to political supporters. Among other things, Barber contends that an MSD contractor delivered fill dirt to Mattingly's property in the Valley Village area even though, he says, Mattingly didn't go through the required permitting procedures. Henderson and Mattingly have denied any wrongdoing. Gray died in November. The case has gone on for about two years in both federal court and before the Louisville Metro Ethics Commission, where Cunningham has also filed a complaint. The commission has not acted on it. Yesterday's opening statements were peppered with salty words and conflicting accounts of what happened between April 2004, when Cunningham learned of alleged problems on a project to install sewer lines in the Valley Village/Mill Creek area of Valley Station, and December 2004, when she and Barber were laid off. David Friedman, a lawyer for the plaintiffs, told the jury that the case is a simple one: that soon after Cunningham raised the allegations privately with MSD Director Bud Schardein, he began retaliating against her. And seven months after Cunningham filed a complaint with Attorney General Greg Stumbo, both she and Barber were let go. Friedman said Barber was pressured to cut corners and overlook things he knew were wrong. "Ron will tell you the problem, the pressure from the politicians, was worse than anything he had seen in 12 years as an MSD inspector," Friedman told the jury. He also said Cunningham used the vulgar words they would hear throughout the trial in an effort to impress upon Schardein the importance of the allegations after he had ignored warnings. "She used the 'F word,' " Friedman said. "She wanted to get Bud's attention." Friedman also said Cunningham had consistently received good salary reviews and in fact received a favorable review just two months before Schardein stripped her of most of her responsibilities. Larry Zielke, a lawyer for MSD, argued that that was just one of Cunningham's problems. He contends that she used "cunning" to leave out key information in her letter to Stumbo and she "connived" to get fired from a job she really didn't want. "Cussing. Cunning. Conniving," Zielke said. "The three C's that kind of fit Cunningham to a T." He said Cunningham had a history of not being able to get along with others on the job and noted that she once called a developer a "fascist pig." Zielke also said she was removed from a project that turned dried sewage into fertilizer because "nobody could work with her." U.S. District Judge Thomas Russell said the trial could last through early next week. Reporter Joseph Gerth can be reached at (502) 582-4702

Comair Pilots broke cockpit rules and Controller changes statement.

Mon, 17 Nov 2008 08:00:00 EST

ABC news reported tonight that the voice cockpit recorder revealed that both pilots broke the "sterile cockpit" rule. The rule requires that pilots not engage in any non-essential communications during the crucial parts of the flight, including takeoff. The pilots can be heard discussing families, their schedules and another pilot who received a promotion. They can also be heard discussing how strange it was there were no lights on the runway. The ABC news report discussed that the lone air traffic controller has changed his original statement. According to the report, the controller first said he watched the plane taxi to the correct runway. He has now retracted that statement and said he did not see the plane taxi to the runway. The story also reports that the controller was communicating with three planes at once. Here is the complete story: Wednesday, January 17, 2007 Comair says pilots broke cockpit rules By James R. Carroll jcarroll@courier-journal.com The Courier-Journal MULTIMEDIA ATC Communications audio (MP3) / Media/tower transcript (PDF) ATC Phone Call to Fire and Rescue audio (MP3)* / Transcript (PDF) * conversation begins 6 minutes, 30 seconds into tape. WASHINGTON – The flight crew of the Comair jet that crashed Aug. 27 broke federal rules barring pilots from talking about matters unrelated to the flight during moments leading to takeoff, the airline said Wednesday. The transcript of the cockpit conversation between Capt. Jeffrey Clay and First Officer James Polehinke showed that as the plane left the gate at the Lexington airport, the two men were talking about their families and schedules. Four minutes before the crash, as Flight 5191 was taxiing, the crew was discussing another pilot's new job. The aircraft was cleared to taxi onto the correct runway, but ended up on the airport's shorter runway, which was not long enough for the jet's takeoff. Moments later, the plane tried to take off and crashed in trees off the end of the runway. Forty nine people aboard died, with Polehinke as the lone survivor. Federal regulations prohibit flight crews from, among other things, "engaging in nonessential conversations within the cockpit" during critical phases of flight, which include "all ground operations involving taxi, takeoff and landing." "The transcript does make it clear the crew did not follow Comair's sterile cockpit policy," said airline spokeswoman Kate Marx. "Our policy does comply with FAA regulations." But, she said, "while pilots did not follow the sterile cockpit policy, it is premature to make conclusions regarding the role it may have played in the accident." "Comair has and will continue to emphasize the importance of the sterile cockpit both in our training program and in communications to our flight crews," Marx said. "Comair is committed to understanding all the safety issues surrounding this accident and we will take whatever steps necessary to ensure safe operations for our customers and our employees." Chicago aviation lawyer David Rapoport said the sterile cockpit rule is intended to keep the flight crew focused on operating the plane. "Non-pertinent discussions - B.S.-ing in plain language - is distracting and has the potential for distraction," he said. "This crash may be a very good example why its so important that the rule get enforced better." The transcript is among the investigative files on the Aug. 27 jet crash in Lexington that the National Transportation Safety Board released Wednesday. The early-morning accident still is under investigation by the NTSB. Moments before the crash as the plane ran down the wrong runway, Polehinke commented that it was "weird" the runway lacked lights, the transcript says. "Dat is weird with no lights," copilot James Polehinke said at 6:06:16 a.m., according to the transcript. "Yeah," the pilot, Jeffrey Clay, replied at 6:06:18 a.m."Whoa," Clay said at 6:06:31 a.m.The sound of impact is less than two seconds later. The last sound recorded is from Clay, which the transcript says is an unintelligible exclamation at 6:06:35 a.m. The air traffic controller at Blue Grass Airport directed them to taxi to Runway 22, which is the runway designed for such a large plane. Polehinke acknowledges the plane will steer to Runway 22. The lone controller in the Blue Grass tower was handling two other flights while directing Comair Flight 5191, according to the transcript. At the same time that he cleared the Comair jet to taxi to Runway 22, he was directing an American Eagle flight for take off and talking to a SkyWest plane that was leaving, the transcript says. Another document shows the air traffic controller wrote after the crash that he saw the plane taxi to the correct runway, but later he changed that to say he had not been watching. "After the review of my original personnel statement, I did not watch Com191 take Ry. (Runway) 22," controller Christopher Damron wrote in a statement that is part of the accident investigation file. "I saw Com191's position on Twy (Taxiway) A, heading for Rwy 22. I then cleared Com191 for takeoff. I saw Com191's lights turning toward Rwy 22. I turned around to do the traffic count, heard a crash and saw a fireball west of the airport," he wrote. The documents do not explain why the controller changed his statement. Investigators have determined that the jet took off from the airport's shorter, 3,500-foot runway, which is not designed to handle a plane of that size and weight. The jet was supposed to use the 7,000-foot runway. A week before the crash, the airport did some paving and changed the taxiway to the longer runway. The documents released Wednesday do not indicate whether federal investigators interviewed Polehinke, although summaries of other interviews are included. Neither agency plans to comment on the documents and the tape. The accident raised issues about proper airport signage and whether the control tower was adequately staffed. In November, an FAA review of airport signs and markings found that Blue Grass complied with federal standards. But the FAA admitted shortly after the crash that it violated its own policy by having only one controller instead of two on the midnight shift in Lexington. Nearly five months before the crash, an air traffic controller told Kentucky's senators that the airport's midnight shift had two in the tower "only when convenient to management." "This is the FAA playing a scary game of politics and using safety as the trump card," Faron Collins, then the vice president of the National Air Traffic Controllers Association in Lexington, wrote lawmakers on April 4, 2006.The Lexington accident also brought new congressional and media attention to controller staffing nationwide. Nearly 1,100 fewer air traffic controllers are guiding planes now than three years ago, even though flights are increasing, according to a project published in December by The Courier-Journal and Gannett News Service. The controllers' union contends that some facilities are critically understaffed, causing flight delays and increasing the chances that overworked controllers could cause a fatal mistake.The controller force also is facing a wave of retirements. The number of controllers choosing to retire has exceeded FAA projections three years in a row, The Courier-Journal and Gannett found. That is putting more of the workload on less-seasoned controllers and trainees. FAA has said that a second controller at Lexington would not have made a difference in the Lexington accident because that controller would have been looking at radar, not the airport runways.The agency also says that most of the nation's air traffic control facilities are adequately staffed and that it has a plan to deal with the retirements. Comair in October sued the airport and FAA, saying both made mistakes that led to confusion by the Comair pilots. Blue Grass Airport in December sued Comair, saying negligence and wrongful conduct by the airline and the flight crew were the only cause of the crash. Reporter James R. Carroll can be reached at (202) 906-8141. Check www.courier-journal.com for updates.

Are blacks underrepresented on Jefferson County juries?

Mon, 17 Nov 2008 08:00:00 EST

According to the Courier Journal, not enough African Americans are making it onto Kentucky juries. While African Americans make up about 20% of the county's population, they make up only about 16% of criminal juries and 16% of criminal juries. As a result, the Jefferson Circuit court will begin to monitor strikes in an attempt to figure out why our juries do not reflect our population. I can only speculate as to the reason. In my experience, blacks are not 20% of the venire, making it unlikely that 20% of the eventual jury will be people of color. I will look forward to seeing the results. Here is the complete story: Study: Blacks underrepresented on juries By Jason Riley jriley@courier-journal.com The Courier-Journal Two-thirds of the defendants on trial in Jefferson County courts over the last four months were black, while about 16 percent of the jurors also were black, according to a study released Tuesday. And the number of black jurors who sat on civil trials was 11 percent, according to the study by the Commission on Racial Fairness. By comparison, African Americans make up about 20 percent of the total population in Jefferson County, and the commission had hoped to get a similar result for jury representation. In early October, the 22-member commission asked local judges to begin monitoring the number of blacks on jury panels and track how and why they are being removed. The results were announced Tuesday afternoon. The commission was set to discuss them. The surveys results come more than a year after a Courier-Journal series found that Jefferson County residents who live in low-income, mostly black areas are less likely to sit on juries. The commission study found that of the 28 criminal cases followed since late September, 48 jurors were black and 249 were white. Of the 10 civil cases studied, 12 jurors were black and 86 were white. The commission had hoped to learn whether there is a problem with racial diversity in the courts and where it is occurring — whether it be with random removals, prosecutor or defense attorney challenges or a lack of blacks in the pool. According to the results, prosecutors removed 24 percent of the black jurors in criminal trials compared to 76 percent of the white jurors. While defense attorneys struck eight percent black and 92 percent white. The Commission on Racial Fairness has also has been tracking the race of the county's total jury pool, roughly 250 people chosen every two weeks. Of the 11 jury pools looked at, only one was made up of at least 20 percent black members. Unlike some states, Kentucky courts don't track jurors' race to determine whether minorities are fairly represented. State court officials have said they don't ask about race to avoid the appearance that it is a factor in jury selection. The newspaper series found that attorneys across the state — both prosecutors and defense lawyers — removed potential jurors, including minorities, for the kinds of clothes they wear, for being single parents, even for the expressions on their faces. And it found that some courts, like Arizona's Maricopa County, which includes Phoenix, ask potential jurors to list their race to ensure that jury pools represent the community. The commission is expected to issue a report on its findings and present them to Kentucky Chief Justice Joseph Lambert. Reporter Jason Riley can be reached at (502) 582-4727.

State Farm finally agrees to pay Katrina victims in Mississippi-but not Louisiana

Mon, 17 Nov 2008 08:00:00 EST

It only took two years, Senator Trent Lott, one of the most well-known plaintiff's firms in the country, and the Mississippi Attorney General to get State Farm to agree to pay Mississippi Katrina victims 50% of the value of their damaged property. USA Today also reports that an additionally settlement had been reached with other Mississippi victims not represented by the Scruggs Law Firm. One has to wonder if this settlement would have ever been reached if Senator Lott's beach front houst was not blown away. Or if he didn't happened to be the brother-in-law of one of the most feard plaintiff attorney's in the country, Dickie Scruggs of tobacco fame. Regardless, it is a testament to three things: (1) Insurance companies do not act in the best interest of their policy holders, (2) plaintiff's attorney's place individuals on equal footing with the largest of companies, and (3) even when pushed to the limits by the Mississippi AG and the Scrugss law firm, the insurance company will still only pay 50% of what they should. Shameless. Not only that, but they are still denying Louisiana Katrina claims. For more information, read the USA Today story here: State Farm agrees to pay up for Katrina in Mississippi Updated 1/23/2007 11:54 PM ET E-mail | Save | Print | Reprints & Permissions | Subscribe to stories like this By Kathy Chu, USA TODAY State Farm has agreed to pay thousands of Mississippi homeowners hit by Hurricane Katrina likely hundreds of millions of dollars in a landmark settlement that's expected to reverberate across the storm-ravaged Gulf Coast. The company agreed to a deal under which it will reopen thousands of homeowners' claims and is likely to pay as much as $500 million, Mississippi Attorney General Jim Hood announced Tuesday. There's no cap on the payout. The insurer will have to pay at least $50 million under the deal negotiated with the Scruggs law firm, which represents the majority of Mississippi homeowners who sued State Farm. In a related development, State Farm will settle more than 600 individual Mississippi homeowners' Katrina claims for roughly $80 million, according to a person with direct knowledge of the negotiations who didn't want to be named because the settlement is confidential. The settlement applies only to Mississippi homeowners — not to the thousands in Louisiana who are suing State Farm and other insurers, arguing that wind and rain ravaged their homes. Homeowners' policies cover wind and rain damage, but not flood damage, which is covered by federal flood insurance. Homeowners could begin receiving insurance checks within a few weeks, after the class-action settlement is approved, as expected, by U.S. District Court Judge L.T. Senter Jr. As part of the agreement with State Farm in Mississippi, Hood agreed to drop a criminal probe against the insurer related to its claims-handling process. Phil Supple, a spokesman for State Farm, the USA's largest home insurer, said its goal has always been to "reach a just, speedy and efficient resolution to these matters." A settlement "is in the best interest of our policyholders," Supple added. About 35,000 Mississippi homeowners are eligible to have their claims reopened. For about 1,000 Mississippi residents whose homes were reduced to slabs by Katrina, State Farm will offer at least 50% of the homeowner's insurance on the property structure. The average house in Mississippi costs about $200,000, Hood estimates. Thousands more will receive lower amounts. Homeowners who don't want to settle with State Farm can still sue the insurer. But the deal "gives a new opportunity for thousands of people to recover their insured losses through a quick process," says Zach Scruggs, an attorney who, with his father, Richard Scruggs, negotiated with State Farm. State Farm is fighting hundreds of other Katrina-related lawsuits along the Gulf Coast, including in Louisiana. Attorneys in those cases said they hoped the Mississippi development would cause State Farm and other insurers to settle quickly. "State Farm knows where to find me," says Madro Bandaries, who represents dozens of Louisiana homeowners disputing State Farm's payouts after Katrina. "They cannot, in my estimation, go to Mississippi and do one thing and then not go to Louisiana."

How do you get a former United States Supreme Court Justice to mediate your lawsuit?

Mon, 17 Nov 2008 08:00:00 EST

WOW. The January 30th issue of the Courier Journal reports that former United States Supreme Court Justice Sandra Day O'Connor has agreed to mediate a 60 year-old land dispute. To read the entire article, go to our news section. I can only assume this is the first time a former SCOTUS judge has agreed to mediate a class action lawsuit. Justice O'Connor has always been known as a well-reasoned justice with a slight liberal leaning. Here, I predict she will be sympathetic to the heirs of the property rights holders; however, I doubt she can be persuaded to award anything close to the $30 million dollar demand...especially since the plaintiffs are trying to enforce an "unwritten" contract about what their "understanding" was of how mineral rights would be handled. Good luck. Regardless, having her mediate your case is the next best thing to arguing in front of the US Supreme Court. Stay tuned. hp

Legal Malpractice in the 21st Century-Failure to Conduct E-discovery

Mon, 17 Nov 2008 08:00:00 EST

E-discovery has been a buzz word for the last several years; however, with the advent of the new discovery rules in federal court, it has become more important than ever. It is certain that the failure to properly conduct E-discovery will lead to legal malpractice cases against law firms who fail to conduct it or fail to do it properly with experienced computer forensic experts. A company in West Virgina offers a course and you can even get cle credit. Read the story here: http://www.statejournal.com/story.cfm?func=viewstory&storyid=19340

Gone from Rochester is "The Heavy Hitter" and "The Hammer."

Mon, 17 Nov 2008 08:00:00 EST

If you live in Louisville, you already know who the Heavy Hitter and the Hammer is. However, you may not have know that in other states the Heavy Hitter and the Hammer monikers belong to other lawyers. As of today, however, lawyers will no longer be allowed to use nicknames in their advertisements in New York. Evidently, NY courts are concerned that the public is being duped. Unfortunately, the majority of lawyer advertising is done poorly and reflects negatively on the profession. This only serves to add fuel to the already well-fed fire of lawyer bashing. My friend Ben Glass of Virgina has even written a book titled "The Truth About Lawyer Advertising" which explains what these lawyers really mean in their advertising. He also exposes the myth about these lawyers actually knowing how to litigate and try lawsuits when (not if) it becomes necessary. If you want to order his free book, go to www.BenGlassLaw.com I wonder if Kentucky's lawyer advertising comittee will pay any attention to this recent development? hp

Wrongly Convicted Louisville Man Settles with Louisville Metro Government for $3.9 million

Mon, 17 Nov 2008 08:00:00 EST

A local man wrongly convicted of rape has settled with the Louisville Metro Government for the largest amount since the formation of the new government, $3,9 million dollars. William Gregory was falsely arrested and wrongly convicted of rape and attempted rape. He was ultimately freed after DNA evidence confirmed that hairs in a cap could not have been his. Prior to this settlement, he settled his lawsuit against the state of Kentucky for false testimony by its forensic examiner. I saw this story on the news tonight and quicky went to the Courier-Journal online to read about it. (the link is in my news section) I was suprised to see the number of comments from readers questioning whether Gregory should get this money. Freedom (aka Liberty) is one of our fundamental rights. Lest one forget Patrick Henry's closing to his memorable letter of 1775, "I know not what course others may take; but as for me, give me liberty or give me death! " Can one imagine a life (or even 7 years) spent in prison, with rapists, murders, and others of questionable character, knowing that you were innocent. Prison guards tell you when to eat, when to sleep, when to work and when to use the bathroom? KNOWING THAT YOU ARE INNOCENT! Seven years...seven long years. With no real hope you will ever be freed. I can't imagine it, nor can I imagine any amount of money will fairly compensate Gregory. hp p.s. Reading the posts at the CJ, a number of people were concerned (for what reason I don't know) with how much the attorney's received and whether it would be taxed. Typically, attorney's who handle theses cases are on a contingency basis of 1/3 to 40%. Generally, there are no taxes to the plaintiff, only to his attorneys.

Why Medical Malpractice Caps Don't Work

Mon, 17 Nov 2008 08:00:00 EST

Here is a great blog article by Oklahoma PI attorney Noble McIntyre. It discusses how the largest carrier AIG has priced its product--here's a tidbit, it has nothing to do with outrageous medical malpractice verdicts. Read about it here: http://oklahomacity.injuryboard.com/medical-malpractice/caps-dont-work.php

Unethical Fen-Phen Lawyers?

Mon, 17 Nov 2008 08:00:00 EST

Boy, that sure is the way it looks. Attorneys Melbourne Mills, Jr., William Gallion, and Shirley Cunningham are accused of stealing more than $64 million dollars from their clients in a Fen-phen settlement. Now, the Courier-Journal reports that they may have initially withheld another $27.7 million dollars. All three lawyers have been suspended from the practice of law pending the outcome of the Bar investigation and a trial in September. The attorneys claim they had to retain part of the settlement to pay potential future claiments; however, Chief Senior Judge William Wehr has rejected that argument. If these allegations are proven to be true, it is impossible for me to imagine what would motivate any lawyer to be so greedy. Each of these lawyers stood to make tens of millions of dollars apiece, without stealing from their clients. How could they ever justify more (legally or ethically)? If these allegations are true, this simply adds more fuel to the inferno of lawyer hate. Especially for plaintiff's attorneys. The majority of all lawyers are extremely ethical and honest. We adhere to a very stringent set of ethical rules handed down by the Kentucky Supreme Court, and violate them at the risk of losing our license and livelihood. Which is exactly what looks like will happen here. hp to see all of the pleadings in the case, go here: http://www.angelafordlaw.com/avc_case_pleadings.php

Insurance Companies. Deny, Delay, Defend.

Mon, 17 Nov 2008 08:00:00 EST

A recent CNN articel revealed that its study of claims and interviews with industry insiders reveal that many insurance companies unfairly deny claims or offer far less than they are worth. This revelation is nothing new to attorneys who handle automobile accident cases. It has been known for years that companies handle these cases (known as MIST, minor injury soft tissue) in "bad faith." They use a computer program known as Colossus to determine they value of a claim. This computer program is unfair and artificially lowers the vaule of a claim. Some companies hired a giant firm call McKinsey & Co. to help them reduce costs. In Allstate's case, an internal memorandum recommended that Allstate cover its "Good Hands" with "Boxing Gloves" if injured parties refused its low offers. I've heard that in the upcoming week, WAVE 3 will be running a story that 1/3 of all accident claims are fraudulent. I wonder what industry started this story??? hp

Are Lawyer Blogs Speech or advertisements?

Mon, 17 Nov 2008 08:00:00 EST

There was an interesting article in todays Providence Business News (online version) discussing whether lawyer blogs are speech or ads. (for the article link, go to my news section) This is a very interesting subject. Most states regulate what an attorney may say in an ad. Some states, including Kentucky require that ads be submitted along with a submission fee (in Kentucky its $50). Currently, Kentucky does not require submission of blog postings "if they are a legitimate expression of journalism." This standard has not yet been defined. I believe blogs are NOT advertisements so long as they do not stump for business by disussing the lawyer and what he can do for a potential consumer. As long as the posts are legitimate discussions of issues the lawyer is interested in, be they personal or professional, he deserves to be able to discuss them without having to obtain approval from a regulatory body. Sometimes business may result, sometimes not; regardless, it does not turn a blog into an ad. That is not to say that if an attorney abuses a blog they should not be subject to regulation, both by the advertising commision and the formal bar if necessary. hp

Large insurance consulting company reveals the real reason healthcare costs are so high.

Mon, 17 Nov 2008 08:00:00 EST

The Courier-Journal's Fourm section clued me in to a recent New York Times article by Princeton economics professor Paul Krugman. Krugman writes about a comprehensive insurance study about healthcare in the United States. The article was in response to a recent lawsuit brought by two New York hospitals against UnitedHealth Group (and several of its affiliates). The lawsuit charges that resources that could be used to pay for medical care are, instead, wasted in a "zero-sum struggle over who ends up with the bill." The two hospitals accuse UnitedHealth of operating a "rogue business plan" in order to avoid paying medical bills on behalf of its insureds. Now, here is the million dollar question. Why do insurance companies continue to blame lawyers and lawsuits for the high costs of insurance when the insurance consulting company they hire attribute it to $98 billion a year (yes, billion with a "b") in administrative costs, more than half of which consist of marketing and underwriting. When will the insurance company stop blaming victims and start being truthful with consumers? My guess is never. It's much easier to blame victims and their lawyers than face the truth...the entity responsible for the high cost of healthcare is the entity itself. hp p.s. here is a link to a blog with the New York Times article by Princeton economics professor Paul Krugman (on someone else's blog): http://economistsview.typepad.com/economistsview/2007/02/paul_krugman_th_1.html p.p.s here is a link to the actual McKinsey report: http://www.mckinsey.com/mgi/rp/healthcare/accounting_cost_healthcare.asp

U-Haul Plans To Appeal Louisville federal jury awards of $10 Million In Defective Tow Dolly Case.

Mon, 17 Nov 2008 08:00:00 EST

Recently my friends and fellow trial attorneys Peter Perlman and Tyler Thompson tried a defective tow-dolly case in federal court. The suit alleged that U-Haul, over the years, has changed it policies regarding the use of its car-hauling dollys in order to maximize profits. The jury determined that U-Haul's policies were not safe because they allowed the weight of the towed vehicle to be equal to that of the towing vehicle. The jury determined that U-Haul's dolly and policies were the reason Christopher and Corry Burke and their infant son, Ryan were all injured when their Ford Explorer fishtailed out of control and crashed. Corry was injured the worst and is now a quadripalegic. The jury awarded $10 million dollars in damages. U-Haul, through it's lawyers plans to appeal the verdict. I am not suprised U-Haul is appealing the verict. Almost all large verdicts are appealed. What I am suprised about are the majority of comments made by readers of the Courier Journal. Without hearing a single shred of evidence, readers are critical of, not only the amount, but that a jury would even find U-Haul at fault. According to the CJ, "the trial lasted two weeks; the nine-member jury deliberated for two days before finding for the Burkes on Feb. 13. The jury unanimously found that U-Haul failed to exercise ordinary care in the design and distribution of the tow dolly the Burkes were using, that the dolly was "defective and unreasonably dangerous," and that each failure was a "substantial factor" in the accident." Maybe we shoud give the people who heard all of the evidence a little credit. After all, this is they same system we allow to put people to death. hp

W.V. Supreme Court Limits Bad Faith Cases Against Insurance Companies

Mon, 17 Nov 2008 08:00:00 EST

The W.V. Supreme Court took a huge step in reducing bad faith claims in W.V. Daniel Strahin, who was shot in the arm on the property of Earl Sullivan by another man, agreed with Sullivan to sign a Covenant Not to Execute. The covenant stipulated that Strahin would receive from Sullivan any rights to make a bad faith claim if a settlement was not reached. In return, Strahin could not seek Sullivan's personal property as compensation for a jury award. Sullivan's insurance company refused to settle the claim and Strahin proceeded to trial and was awarded over $1 million. Typically, this would mean that Strahin could "step into the shoes" of Sullivan and sue Sullivan's insurance company for first-party bad faith (I don't think W.V. has 3rd party bad faith like Kentucky does). However, the Supreme Court in West Virginia has decided that because Sullivan would never actually be responsbile for the jury verdict (since Strahin had agreed not to execute on him personally) that the insurer was not responsible for paying the amount of the jury verdict exceeding Sullivan's $100k policy limits. The court reasoned that, although there was no evidence of it here, the risk of collusion exists in situations such as this becuase the insured no longer has any real incentive to defend the case. "We now hold that in order for an insured or an assignee of an insured to recover the amount of a verdict in excess of the applicable insurance policy limits from an insurer pursuant to this Court's decision in Shamblin, the insured must be actually exposed to personal liability in excess of the policy limits at the time the excess verdict is rendered," Maynard wrote. It is my humble opinion that the court went to far. The risk of collusion is too low to justify this opinion. Furthermore, unless the insurance company offered the $100k and the Strahin refused it, then the insurance company DID obviously acted in bad faith considering the size of the jury award. If they did offer the money, and plaintiff refused it, then there has been no bad faith and the case will be dismissed at the preliminary stages. If it is the latter, this certainly does not justify foreclosing an entire cause of action when insurers truly act in bad faith. hp To see the entire article, here is the link: http://www.wvrecord.com/news/191020-supreme-court-looking-ahead-in-insurance-opinion-attorney-says

O.J. Simpson's Former Lawyer Settles Legal Malpractice Lawsuit

Mon, 17 Nov 2008 08:00:00 EST

Remember O.J.'s trial in 1994? Do you also remember his lawyers? He hired several of the best, including Johnny Cochran (now deceased), F. Lee Bailey, and Barry Scheck. Unfortunately, legal malpractice is not limited to bad lawyers. Even excellent lawyers sometimes make mistakes. Lee Long served six years after a New York jury convicted him of rape. Mr. Long maintained his innocence and was ultimately freed as a result of the work of the Queens Legal Aid Society. Long retained Barry Scheck, O.J. Simpson's former lawyer, and Scheck's firm to represent him in a wrongful imprisonment suit against the state of New York. Scheck filed suit in 2002; however, the trial court dismissed the case claiming the suit was filed too late. Two different appellate courts affirmed the dismissal. Lee then sued his attorney Scheck for legal malpractice. Attorney Scheck, co-founder of a legal clinic that pioneered the use of DNA technology to help free innocent prisoners, agreed to pay $900,000 to a man wrongly convicted of rape. Ironic, isn't it? hp

Louisville Funeral Home Director Charged With Crimes-Should the Families Have any Recourse?

Mon, 17 Nov 2008 08:00:00 EST

Nathanial Anderson, a former Louisville funeral home director, has been stripped of his license. Anderson was arrested yesterday after authorities discovered human remains at his home and at Anderson Funeral Home. The authorities discovered 18 sets of remains. Anderson is charged with three counts of abusing a corpse and "failure to make required disposition of property." The coroner's office is trying to locate the next of kin for several of the remains. So, the question becomes, do the families have any rights to recover against the funeral home? At first blush, one might think not. I mean, the people were already deceased, so it is not like they experienced any pain or suffering as a result of the mishandling of their bodies. But Kentucky law recognizes the families right to bring a claim for the negligenct treatment of their loved one's remains. The subject of a person's right to recover in cases of this nature was summarized by this court in Louisville Cemetery Association v. Downs, 241 Ky. 773, 45 S.W.2d 5, 6, where it was said: 'A recovery may be had by the next of kin or the surviving spouse for an unwarranted interference with the grave of a deceased, or for the infliction of an injury to a corpse, if either be done (a) maliciously, (b) or by gross negligence, (c) or wantonly, i. e., with a reckless disregard of the rights of another (Louisville & N. R. Co. v. Hull, 113 Ky. 561, 68 S.W. 433, 24 Ky.Law Rep. 375, 57 L.R.A. 771), (d) or for an unlawful or secret disinterment or displacement thereof (Ky. St. §§ 466 and 1335), or (e) an action of trespass quare clausum fregit may be maintained by the holder of the title, or the person in possession of, the lot on which a grave is located (Cooley on Torts 239, 240; 1st Blackstone's Commentaries 429; Hook v. Joyce, 94 Ky. 450, 22 S.W. 651, 15 Ky.Law Rep. 337, 21 L.R.A. 96), or (f) for the removal of a body from one grave to another by those in authority and control of the cemetery or burial ground, without notice, or an opportunity, to him who in law is entitled to be present, if he desires, before its removal (citing cases). Hazelwood v. Stokes483 S.W.2d 576 Ky.,1972., Streipe v. Liberty Mutual Ins. Co., 243 Ky. 15, 47 S.W.2d 1004 Meyers v. Clarke, 122 Ky. 866, 90 S.W. 1049, 28 Ky.Law Rep. 1000; Meyers v. Duddenhauser, 122 Ky. 866, 93 S.W. 43, 29 Ky.Law Rep. 393. What do you think, should the families be allowed to sue the funeral home director and recovery money? hp

Why Aren't Lawyers Required to Carry Legal Malpractice Insurance.

Mon, 17 Nov 2008 08:00:00 EST

If you are like most people, you probably assume that lawyers are required to have malpractice insurance to protect their clients if the lawyers malpractices; unfortunately, if you live in Kentucky, you'd be wrong. That's right, there is no legal obligation for a Kentucky attorney to carry legal malpractice insurance. And you know what, as a lawyer who handles legal malpractice cases, I can tell you that alot of lawyers don't carry any insurance, and others don't carry enough. I, for one, believe every attorney should carry insurance; however, at least one attorney disagrees with me. In her blog, Susan Cartier-Liebel writes that mandatory legal malpractice insurance is a bad thing. Here is what she says, "Forcing an attorney to have malpractice insurance to protect those who would use his services, or forcing him to disclose that he doesn't have such coverage, will predominantly adversely impact new solo and small-firm lawyers, punishing them for a being new and financially tight. Instead of branding new uninsured attorneys with a Scarlet Letter, why not simply educate the consumer on the benefits of having a lawyer who is insured. If they are litigious, they'll seek out the insured attorneys, I promise. As a profession, we already have certain protections in place to help the victims of malfeasance. Let the state Client Security Fund reimburse qualified victims. Let the Statewide Grievance Committee disbar irresponsible or criminal lawyers. Then let the criminal courts take it from there." What Ms. Cartier-Liebel fails to appreciate is that a lawyer who does not carry insurance likely does not have any assets to cover his client's losses should he or she malpractice the case. So, the only real loser is the client. What Ms. Cartier-Liebel further fails to understand is that practicing law is a privilege, not a right. The bar association, by giving us a license, has told the public at large that we are of high moral and ethical character. More importantly, the bar is saying that we are people of good judgment and will exercise that judgment on behalf of our clients in a fiduciary capacity. Meaning we will put our client's interests above our own. When clients come to us, they bring problems. They are trusting us to help them and advise them. We fail them when we are not responsible enough to protect them from our own mistakes by purchasing insurance. If lawyers are not responsible enough to purchase insurance, then the bar should make it a requirement. And if a lawyer doesn't like it, I invite them to turn in their bar card and choose a job with less responsibility. hp

Failure to Check in on Resident Leads To Alzheimer's Patients Death

Mon, 17 Nov 2008 08:00:00 EST

Another example of unacceptable nursing home care has led to a resident's death in Marion, Indiana. Bradner Village fired two nursing home employees after they failed to look in on him two nights in a row. Clarence Elliot, 76, was found outside, frozen to death. How can something like this happen? We entrust nursing homes to look at our loved ones when we are no longer able to. Unfortunately, there are many facilites that provide poor care. This is just one example. I'll bet if we look at the bed check logs, they will show that Mr. Elliot was "sleeping soundly" both nights. All the while he was wandering around freezing.

CSX cited for 199 safety violations

Mon, 17 Nov 2008 08:00:00 EST

Recently (see our news section) the Federal Railroad Administration issued 199 citations to CSX for over 3000 safety violations. The Federal Railroad Administration administrator, Joseph Boardman, said in a statement that "the railroad is still not doing enough to make safety a top priority." As a lawyer who represents railroad workers who are injured on the job, this safety problem comes as no surprise to me. Railroads are extremely dangerous places and the railroad does not do enough to ensure the safety of its workers. They often provide unsafe equipment and work enviroments that lead to serious injures to railroad workers. Unfortunately, railroad workers are not entitled to worker's compensation to pay for their injuries; instead, they must file a lawsuit against their employer under a federal law known as the Federal Employer Liability Act, known as FELA. While the railroad continues to deny that it has serious safety problems, the federal government and Kentucky juries see things completely differently.

Keeping Politics out of the Courtroom

Mon, 17 Nov 2008 08:00:00 EST

Ken Conner, a fine trial lawyer, recently wrote the following article I though I'd share with my readers. Law on the Line: Keeping Politics Out of the Administration of Justice Then Attorney General John Ashcroft's exhortation to federal prosecutor David Iglesias was straight forward: "Politics should play no role during your tenure." That's exactly the way it ought to be. Prosecutors should make decisions based on the law and the evidence, not on the basis of politics. The First Amendment protects our right to political association. In America, therefore, people ought not to be prosecuted because of their political convictions or affiliations. Whether one is a Democrat or Republican should be of no moment. The sole consideration ought to be whether or not an accused has violated the law. This is something conservatives once understood. Not long ago, conservatives emphasized the fact that America is a "nation of laws." No man or woman is above the law, regardless of their office or political affiliation. And just as importantly, we are all equal before the law. Therefore, while politics may enter into a president's decision to appoint a prosecutor (he may prefer Republicans over Democrats or liberals over conservatives), the prosecutor must not allow politics to influence the decision to prosecute. Justice should be blind to political considerations. If it were otherwise, the public would lose confidence in the justice system. Part of what distinguishes America from a Middle Eastern dictatorship is that our citizens are not subject to punishment merely for being out of favor with the governing political party. That's why allegations that a sitting Republican Senator and Representative may have tried to influence the investigation and prosecution of political adversaries before last fall's election should be taken very seriously. The purpose of an indictment is not to score political points. Whether or not the Bush administration used the firings of eight United States attorneys to manipulate the criminal justice system remains to be seen. That question, however, has almost been overtaken by another one, to wit: whether the attorney general has been truthful with Congress with respect to his involvement in the matter—can you say Scooter Libby? In any event, there can be no doubt that partisan politics will play a central role in the answering of these questions. The politicization of the justice system is a matter that should give every American pause. Truth be told, Republicans in general—and President Bush in particular—have shown themselves all too willing to inject politics into the justice system. Under the guise of "tort reform" Mr. Bush and some of his Republican allies, have sought to emasculate the role of juries in civil cases by putting in the "fix" in advance of the presentation of evidence in any given case. Acting at the behest of business and insurance lobbyists, the Bush administration has repeatedly sought to predetermine outcomes in the civil justice arena by passing legislation that would limit the liability of wrongdoers and to cap the damages awarded to their victims at a predetermined amount without regard to the evidence. These initiatives represent little more than affirmative action programs for wrongdoers. The deprivation of the right to trial by jury of injured victims who have suffered at the hands of the wrongdoers should not be permitted. These efforts to manipulate outcomes in the civil justice arena reflect poorly on the Bush administration and on Republicans. Historically, decisions about outcomes in the civil arena have been left to juries drawn from the community who examine the law and the evidence without regard to politics. The jury system has been called the "bulwark of democracy" because decisions are to be based solely on the law and the evidence and not political considerations. Given the willingness that Mr. Bush and some of his allies have shown to shape outcomes in the civil justice arena, one is naturally left to wonder whether they have been willing to do the same in the criminal justice arena. Americans should resist any attempts to manipulate outcomes in our justice system, either through laws that determine the outcome in advance, or by pressuring federal prosecutors by threatening their jobs. In either case, the judicial system is compromised. Lady Justice should not be allowed to peek out from behind her blindfold. She must remain blind to political matters when applying the law. Otherwise the phrase "equal justice for all" will become just another political nostrum devoid of any real meaning.

Two Big Law Firms in Big Trouble for Legal Malpractice

Mon, 17 Nov 2008 08:00:00 EST

In today's news section, you will see two articles involving two major law firms and the hot water they now find themselves in. First, a law firm that negotiated a huge settlement with the makers of the diet drug fen-phen has been ordered to stand trial over whether it manipulated the deal in a way that increased the lawyers' share of the money. State Supreme Court Justice Charles E. Ramos said Wednesday he was ordering a trial because of questions about whether the firm, Napoli Bern Ripka LLP, violated ethical rules in apportioning shares of the settlement money. The firm represented 5000 users of the diet drug in a lawsuit against American Home Products, the maker of Fen Phen. They allegedly settled for over a billion dollars; however, and affidavit from a former Napoli employee says the firm wrongfully divided the settlement proceeds based on whether the client retained Napoli first or was referred by another lawyer to whom Napoli would have to pay a portion of the fee. The former employee says Napoli inflated the values of the cases on which they didn't have to split fees with other lawyers. If there is any truth to this, this law firm is in deep trouble. Not only have the committed legal malpractice, the have violated a number of ethics rules which would justify suspension or disbarment. Lawyers owe a fiduciary duty to their clients, which means they must put their client's interests above their own. This is especially true when the attorney's only interest in monetary. For a law firm to wrongfully inflate the value of some cases over others in order to increase its fee is so abhorrent. Next, we have Jenkens & Gilchrist, once one of the largest law firms in Texas. Apparently, this national law firm has admitted its Chicago branch helped thousands of clients wrongfully avoid paying taxes by setting up bogus tax shelters. The law firm has agreed, in exchange for not being prosecuted, to close its doors and pay the IRS $75 million. The law firm has also been sued for legal malpractice by several of its former clients. It is reported that the settlement exceeds $80 million. Unfortunately, the former Jenkens clients are not off the hook with the IRS. Jenkens was forced to turn over its client list and the IRS is going after them. They clients will owe back taxes, plus penalties and interest. This is simply one more case of a law firm placing its own financial interests above its client's best interest. Shameful.

Is Louisville Magazine's 245 Best Lawyers in Louisville accurate. Not likely.

Mon, 17 Nov 2008 08:00:00 EST

In the March issue of Louisville Magazine, they list the 245 best lawyers in Louisville. I'm sorry, but I have to take serious issue with this list. This is not to say that the list does not contain several of the best lawyers in Louisville; however, in my opinion, the list is severly biased towards including people who practice in large firms. To be fair, Louisville Magazine did not do any independent research to determine who the best lawyers in louisville are, they simply reproduced the list from The Best Lawyers in America © 2007 published by Woodward/White Inc., of Aiken, S.C. While inclusion is based on peer recommendations, I suspect that members of larger firms choose to nominate members of their own firms as opposed to lawyers in other firms who compete for the same business, or small firm practioners. As an example, under medical malpractice, of the 18 lawyers listed, only 3 represent victims of medical negligence (known as plaintiff's lawyers) as opposed to representing the healthcare provider (defense lawyers). I personally know every lawyer listed in this category and while they are all very good, this list does NOT contain the "best" medical malpractice lawyers in Louisville. Several of the best lawyers in medical malpractice represent injured people, not healthcare providers. Why are they so underrepresented on this list? The same is true with the personal injury category. Only 10 out of the 33 lawyers represent the injured person. Again, I probably know every lawyer on the list. Again, all very good lawyers; however this list does not represent the "best" personal injury lawyers in Louisville. Another example is criminal defense lawyers. There are only 3 lawyers listed. Under criminal law. The likely reason? Almost all criminal lawyers practice in 1 or 2 person firms. Not the mega-firms. So, the whole criminal law section gets overlooked. Louisville Magazine should choose the best lawyers in Louisville the same way it chooses its Top Docs list. They should do an actual survey of Louisville lawyers. If they did, I'm certain the list would look a lot differently. "Who are the best lawyers in Louisville?" you ask. Well, I can't answer that, all I can tell you is that this list is not accurate. hp

Ann Nicole's Louisville boyfriend gets CRAZY bill from his attorney.

Mon, 17 Nov 2008 08:00:00 EST

In just a little under two months, Larry Birkhead's lawyer, Debri Opri has somehow managed to bill him a whopping $620,492.84. That much money and he doesn't even have custody of little Danni Lynn??? Is it any wonder lawyers have such a bad reputation. I can't understand how an attorney could in good conscience submit such a bill to a client. One of the charges includes a $2,500 dollar dinner that Birkhead wan't even in present. Out of fairness I have to say I have not seen the entire bill and I don't know if it includes any legal work prior to Anna Nicole's death. However, the portions being shown on the internet contain items which I am certain would not fly here in Louisville. If the $475 and hour isn't enough to make you blanch, how about 18 limo rides, or $4,500 fo Opri's personal publicist (hmmm, maybe I need a publicist.). To see more of the billings, go here: http://www.tmz.com/2007/04/01/debra-opri-bills-birkhead-kings-ransom/

Who do defense lawyers represent, the insurance company, or the insured? Kentucky Court of Appeals is Considering this Issue

Mon, 17 Nov 2008 08:00:00 EST

George Hofmeister, a Bourbon County horseman and entrepreneur, was in a wheelchair for five months after he was injured in a head-on car crash in November 1998. Unable to oversee dozens of businesses across the world, his net worth declined from $196.7 million to negative $6.5 million, his attorneys say. Hofmeister blamed Cincinnati Insurance Co., which insured the company that employed the driver who hit him, for his financial downfall. In 2002, a Scott County jury awarded Hofmeister $28 million after finding that the insurance company had acted in bad faith by delaying an insurance payment, then misrepresenting the amount of coverage that was available. A judge later reduced the award to $20 million. During oral arguments yesterday, the Kentucky Court of Appeals was posed a question that's being closely watched by the insurance industry: Are the lawyers that insurance companies provide for their customers acting on behalf of the insurance company instead of just the customer? The insurance industry says no. In a brief filed as part of Cincinnati Insurance's appeal, a group of insurance defense lawyers says it's always been Kentucky law that the defense lawyer's only client is the insured driver -- even if the insurance company is paying the bills and is on the hook for the settlement or jury verdict.

6th Circuit allows Newby lawsuit against McKenzie Mattingly to proceed

Mon, 17 Nov 2008 08:00:00 EST

My friend, Garry Adams, has won another case at the 6th Circuit Court of Appeals. If you live in the Louisville area, you certainly remember the Michael Newby shooting by former officer McKenzie Mattingly during an alleged drug deal. Mattingly argued the case should be dismissed beause he acted reasonably in shooting Newby. Federal Judge Simpson disagreed and denied McKenzie's motion to dismiss the case. McKenzie appealed to the 6th Circuit. Yesterday, in a unanimous opinion of a three judge panel, Simpson was affirmed. McKenzie now runs a private investigation service called Information Specialists. I'll have to talk to Garry, but I assume the case will proceed back to the trial court for a trial on the merits of the case. Hans

Louisville Diet Doctor Being Investigated

Mon, 17 Nov 2008 08:00:00 EST

Today's Courier Journal reports a local diet drug doctor is being investigated for operating an online pharmacy that never evaluates the people getting the medications. Dr. Tufan I. Senler is being investigated by the DEA over these practices. The Kentucky Board of Medical Licensure has filed its own complaint against the doctor, which could result in disciplinary action, including revoking his license to practice medicine. Senler denies the allegations but has agreed to stop practicing medicine until the matter is resolved. "It's voluntary. No one has suspended his license," said Senler's lawyer, T. Wesley Faulkner, adding that Internet prescribing is not illegal. "There's been no disciplinary action against my client."

Medical Malpractice Defense Lawyers' Nightmare Client

Mon, 17 Nov 2008 08:00:00 EST

I have to say, when I received this blog post yesterday, I could hardly believe it. It seems a pediatrician from up north has been sued for medical malpractice involving the death of a child patient. The doctor, only identified as "Flea" has been blogging about the trial since it started. In fact, he has even revealed attorney-client priviliged communications and tips and strategies given to him by his trial consultant. Not only has Flea made a mockery of the judicial system, he has jeapordized his insurance coverage. I wish you could read the cavalier attitude with which he writes his posts (he actually pondered whether the plaintiff's attorney was a "pillow biter.") I really wish you could read the comments posted by his supporters (mainly other doctors). It would seem from reading this blog and the comments that every single medical negligence case ever filed is bogus and filed only by those seeking a "lottery win." (Yes, for those of you wondering, every parent would rather have a fistful of dollars instead of their once breathing child.) Unfortunately, you likely won't get to read the blog posts since smarter head must have prevailed and forced him to remove it during the trial. It is off the web as of today. You can still read a little of it here Hans

The Flea is Back. Read about this Pediatrician's first day of trial.

Mon, 17 Nov 2008 08:00:00 EST

Here, the Flea discusses the first day of trial (he has even drawn a cartoon of the plaintiff's attorney). What is most interesting is Flea's comment about what kind of juror he wants.... Most people accuse plaintiffs attorneys of wanting un-educated jurors. Here, Flea explains why he would rather have fourteen un-educated mothers as opposed to fourteen educated men. hp p.s. Sorry I had to save these as pdf's. Flea's blog is no longer live.

The Flea Explains their Trial Strategy

Mon, 17 Nov 2008 08:00:00 EST

I can't get enough of the Flea. For those of you who haven't heard of this guy, he is a pediatrician on trial for medical malpractice. He has been blogging about his trial...as it is happening. He recently removed the blog, but thanks to my friend the TechnoEsqwe have found some of his posts. Here he explains why he is sitting in the front row instead of out counsel table. He also tells us how his trial consultant prepared him for trial. hp

The Flea tells us what juries really care about.

Mon, 17 Nov 2008 08:00:00 EST

Herethe Flea tells us that juries don't really care about the facts or the medicine. They base their decision on the doctor's looks. Flea think he looks pretty good, so he should be o.k. This guy is amazing. Make sure you read the comments. hp

The Flea Outlines the Plaintiff's Complaint against him.

Mon, 17 Nov 2008 08:00:00 EST

Why was the Flea sued in the first place. Here he tells us. The Flea is convinced it is impossible for him to make a mistake, so obviously, this case should have never been filed. The comments are as unbelievable as Flea's post. hp

Preakness Winner, Curlin, Owned by Troubled Phen Fen Lawyers

Mon, 17 Nov 2008 08:00:00 EST

Well, the Preakness just finished and we'll have to wait another year for a Triple Crown winner. And, while Curlin is certainly a great horse, his owners have some major problems. Two of Curlin's owners are former Lexington attorneys William Gallion and Shirley Cunningham. Anyone who follows this site knows about their major legal problems. You can read about the allegations here. Here is a story that was posted on USAToday that was later removed: Curlin's owners in diet-drug dispute Associated Press Posted: 10 days ago LOUISVILLE, Ky. (AP) - Without putting down a bet, more than 400 people believe they have a financial stake in how Kentucky Derby favorite Curlin performs in Saturday's race. The group alleges that two of Curlin's owners, attorneys William Gallion and Shirley Cunningham Jr., pocketed millions that plaintiffs were due as part of a $200 million settlement over the diet drug fen-phen. As plaintiff W.L. Carter sees it, money that should have gone to care for one-time fen-phen users went instead to the attorneys, who purchased the strapping chestnut colt. "My name may not be on the bill of sale, but I feel like I helped pay for that sucker," Carter, of Lawrenceburg, said Thursday. A judge in northern Kentucky ruled that Gallion, Cunningham and another lawyer breached their duty to clients, who claimed the attorneys paid themselves an extra $64 million from the 2001 settlement. The plaintiffs had sued the drug maker American Home Products, claiming the diet drug caused health problems. They ended up with $74 million. The three lawyers denied wrongdoing in response to being sued by ex-clients, but have been temporarily suspended from practicing law. Gallion and Cunningham's Midnight Cry Stable, which bought Curlin for $57,000 as a yearling, sold controlling interest in the horse in February for $3.5 million to a group that includes California vinter Jess Jackson. Midnight Cry Stable retained a minority share in the horse. Gallion said he hadn't given any thought to whether future legal developments could claim his potential Derby profits. "Those are two separate issues," he said in a telephone interview. "This whole thing is about the horse, it's not about me." The plaintiffs are awaiting a ruling by a judge on the amount the attorneys will have to pay them. Curlin didn't compete as a 2-year-old but has won all three of his career races by a combined 28 lengths, including a record 10 1/2-length victory in the Arkansas Derby last month. The colt, already with more than $800,000 in winnings, would skyrocket in value as a Derby champion. This year's winner will collect a $1.45 million purse — with more possible for a runaway win. Fast-food company Yum Brands Inc. has offered a $1 million bonus for a victory by more than 6 1/2 lengths — the margin of Barbaro's Derby win last year. Curlin also would command high stud fees once his racing days are over. Gallion said he hoped to be in the winner's circle with other owners if Curlin wins. Asked about having a Derby favorite, he replied, "It's exciting — everybody's lifetime dream come true." Carter, one of the plaintiffs, said it would be upsetting to see Gallion and Cunningham in the winner's circle. Still, he'll tell friends at a Derby party Saturday that he considers himself a stakeholder in the horse and will be cheering him on. "If it wins, it may help us recover part of what's owed us," he said.

Insurance Company Cheers after Minnesota Consumers Denied Right to Sue

Mon, 17 Nov 2008 08:00:00 EST

Today, Minnesota residents were denied a very important legal right and it has insurance companies patting themselves on the backs. Up for a vote was the right to hold insurance companies accountable if they negotiate in "Bad Faith" and refuse to pay claims or offer "low ball" settlements. Unfortunately, not every state recognizes third-party bad faith causes of action. Fortunately, Kentucky is one of the few states that recognizes an individuals right to sue another person's insurance company if the negotiate in bad faith. Kentucky residents are given the right to sue under its Unfair Claims Settlement Practices Act. Holding insurance companies accountable for dealing unfairly with injured Kentuckians is the only way to ensure they play by the rules and negotiate fairly. Without the ability to take an insurance company to court when they negotiate in bad faith, Kentuckians lose and insurance companies continue to make record profits year after year. hp

Legal Malpractice Cases are Complicated-Here's how to Screw One Up

Mon, 17 Nov 2008 08:00:00 EST

Legal malpractice cases are among some of the most complicated cases a lawyer can handle. It is not enough to simply prove your former attorney was negligent, you must also prove the underlying case had value, and that the result would have likely been different if your lawyer had complied with the standard of care. This is what's known as proving the case within a case. The damages in the underlying case now become your damages against your former lawyer. Not every lawyer is capable of handling a legal malpractice case. In fact, not many lawyers in Louisville (or even Kentucky for that matter) even handle legal malpractice cases. Here is an example of a Texas lawyer who tried to handle a legal malpractice case and screwed it up and got it dimissed. I bet the plaintiff won't be able to find a lawyer to represent him in his next legal malpractice case. Can you imagine how hard it will be to prove a case within a case...within another case??? Hans Poppe

Insurance Company Sued By Dr. after they Settled Lawsuit on His Behalf.

Mon, 17 Nov 2008 08:00:00 EST

Most medical malpractice policies have "consent clauses." This gives the doctor the right to object to the insurance company settling a claim for malpractice. The first question you might ask is "Why would a doctor not want the insurance company to settle?" This is really a complicated issue, but at the end of the day it comes down to the fact anytime a doctor (actually his insurance company) pays to settle a medical malpractice claim, it is reported to the National Practioner Data Bank. This databank tracks a doctor's history and hospitals use it in making decisions to grant or deny privileges or credentials. Insurance companies also use it to establish a doctor's malpractice rates. Needless to say, doctor's don't want to have to report any successful malpractice lawsuits. They always want them defended. This makes settling a medical malpractice case extremely difficult becuase doctors refuse to give consent even when the liability is clear and damages are catastrophic. Now, settling a medical malpractice case may become even more difficult since a Florida doctor has sued his own insurance company for settling a malpractice claim without his consent. Dr. Anthony Rodgers has sued Chicago Insurance Company for settling a 2002 lawsuit against him. Originally, the court dismissed the case saying he did not have the right to sue his insurance company for paying the claim; however, a Florida court of appeals reversed the dismissal and sent the case back to the trial court. This should be interesting. A doctor purchases insurance to protect him in the event he is sued, and when they act in his best interest by settling a medical malpractice lawsuit, he turns around and sues them for it. Incredible. Hans Poppe

Is Your Doctor Blogging About YOU??

Mon, 17 Nov 2008 08:00:00 EST

Recently, I came to learn that there is a community of doctors who are blogging about themselves and their patients (one doctor was even blogging about his medical malpractice trial why it was happening) I don't think this is a wide spread practice; however, blogging is still very new and who knows where this will lead? Here is one doctor discussing why it is important for doctors to blog about their patient experiences I don't know why, but I find this a little disturbing. Sure, most of the blogger doctors keep the patient names confidential and some of the doctors even remain confidential, but there is something about having real patient information disclosed in this medium that leaves me feeling a little concerned. I think it is a slippery slope that could lead to disclosure of confidential patient information. I'm not sure what we as consumer patients can do about it, but I'm concerned nonetheless. Hans Poppe

Kentucky Super Lawyers - The First Issue

Mon, 17 Nov 2008 08:00:00 EST

The First Edition of Kentucky Super Lawyers is out and I must say it is much more accurate than the Top 245 Louisville Lawyers published in the March issue of Louisville Magazine article. (click here for my rant). That being said, it remains to be seen if the SuperLawyers will be able to use the title in any of their advertising. At least one state's attorney advertising commission has ruled the the use of the title may be misleading. Looking at some of the Kentucky Advertising Commision's FAQ's it appears this could become a sticky issue: Q. MY LOCAL NEWSPAPER'S SURVEY VOTED ME "BEST LAWYER OF THE COUNTY" MAY I PUT THIS IN MY ADVERTISEMENT? OR I AM LISTED IN "BEST LAWYERS OF AMERICA" or "CHAMBERS" CAN I PUT THIS INFORMATION IN MY ADVERTISEMENT? A. Comparisons of yourself to other lawyers violates SCR 3.130(7.15), unless the comparison can be substantiated. The AAC often requires substantiation. To avoid delays in the review of your advertisement, include the substantiation of any claims that compare yourself with others in with your submission, preventing delay of the review process. The methodology used in any survey, ranking, top ten list, etc, should be part of the substantiation in many instances. Q. CAN I ADVERTISE THAT I WAS IN "BEST LAWYERS OF AMERICA", "CHAMBERS" OR A LOCAL NEWSPAPER SURVEY, AND THAT IT NAMED MY FIRM "THE BEST" IN THE COUNTY/REGION/STATE? A. SCR 3.130(7.15) Prohibits advertising that includes a comparison of you and other lawyers, unless you can substantiate the claim. To prevent the Attorneys' Advertising Commission from disapproving your advertisement due to such a claim, include with your submission, substantiation of your claim. This should be conclusive proof that only you, as compared to every other Kentucky lawyer, can make this claim. SCR 3.130(7.15) restricts false or other statements that may mislead potential clients into believing you or your firm is better or more competent that others. Claims should be carefully worded to avoid being misleading. Claims implying that your law firm can get more money or that your law firm is the most powerful are misleading. Even a claim that you are a "big-city lawyer", while it could be true, can be considered misleading as an implication of power or competency due to your location. [source] We'll see if Kentucky's advertising commission takes a hard line with the Super Lawyer designation similar to what New Jersey did. Personally, I think all of the attorney's listed should be allowed to let the public know they are a Kentucky Super Lawyer for 2007. Hans Poppe

The Flea's Identity is Revealed at Trial

Mon, 17 Nov 2008 08:00:00 EST

Frequent readers of my blog know that recently a medical malpractice trial was going on in Boston and the defendant doctor, a pediatrician, was blogging about it under the assumed name of "Flea." Prior posts here, here, and here. Well, it appears the Flea's true identify was revealed during his cross-examination. Eric Turkewitz, a New York personal injury attorney has also been blogging about the Flea and how his blog could impact his trial if discoverd. What is even more interesting than the fact that the Flea was blogging about his own trial is how outraged the medical community is that a) the blog was taken down, and (b) that the blog had a negative impact on the Flea during trial. I really dont' know what the Flea (or his supporters for that matter) expected. You don't need to be a lawyer to know that discussing attorney client priviliged communications on the internet during your trial is a bad thing. Where I am most disappointed is how quickly other doctor's jumped on the bandwagon to support the Flea, without knowing the facts of the case. It is almost as if doctors beleive that no doctor has ever been negligent and every lawsuit ever filed against a healthcare provider is frivolous and malicious. Well folks, that simply is not true. Doctors are people, and people make mistakes; however, doctors are the only category of people who have sought to limit their responsibility when the make a mistake (tort reform). Well, I won't go off on that tangent. Suffice it to ask. Will we see "Return of the Flea." Hans Poppe

Mythbuster- Jury Verdicts are Consistent and Conservative

Mon, 17 Nov 2008 08:00:00 EST

Recently, I was involved in a debate about whether juries are out of control and whether they should be allowed to decide cases. I clearly believe they should. Thomas Jefferson said it best "I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." A recent study by the Center for Justice and Democracy dispelled a number of myths. Some of the biggest truths revealed are: (1) average jury verdicts are decreasing, not increasing, (2) In 2007, Lawyers Weekly reported that "for the second year in a row, the nation's largest verdicts to individual plaintiffs have fallen dramatically." The publication reported that its "Top Ten Verdicts in 2006" were about one third of the average in the previous year, (3) juries are not anti-business or anti-doctor, in fact the opposite is true, (4) high jury awards are frequently reduced after verdict, (5) In 2001, the latest year studied by the U.S. Department of Justice, plaintiffs won before judges 50 percent of the time in 2001, while only winning 26.3 percent of cases before juries, dropping from 30.5 percent in 1992. According to the Harvard School of Public Health, patients "rarely won damages at trial, prevailing in only 21 percent of verdicts as compared with 61 percent of claims resolved out of court." Consider this the next time someone complains to you about all of these "runaway juries." Hans Poppe

Larry Birkhead Counter Sues Former Attorney Debra Opri

Mon, 17 Nov 2008 08:00:00 EST

Louisville native Larry Birkhead has fought back after being sued for unpaid legal fees by Debra Opri. If you recall, Opri billed Birkhead more than $600,000 in the child custody case. You can read the suit here. Birkhead alleges that he was introduced to Opri by an MSNBC employee and Opri volunteered to handle the case for free because of the publicity and new clients it would bring her. Birkhead claims the relationship began to fall apart when Opri, against Birkhead's wishes showed up at Ann Nicole's funeral wanting to discuss business. He also claims Opri pressed him for a $20,000 payment shortly after taking the case, but it was supposed to be the only request for payment. Birkhead also claims Opri established a "save Dani Lynn" fund for legal fees without his authorization. During the ongoing court battle Birkhead signed an agreement with NBC for exclusive reports on the custody case. Under the agreement, he says he was to receive no less than $1,050,000. In his suit, he alleges that at least $865,000 of that money was deposited in Opri's attorney-client trust account. Birkhead's suit says he never gave Opri consent to deposit any money into her account and has demanded that the money be returned to him. Per Birkhead, Opri has only returned $200,000. Stay tuned, this could be interesting. Hans Poppe

Did The Flea's Case Really Settle Because of his Blog??

Mon, 17 Nov 2008 08:00:00 EST

Many attorneys (and non-attorneys) have been debating whether and how the Flea's blog could have been relevant in a medical malpractice case. I hypothesized on another blog that it likely could have been relevant has a prior inconsistent statement. Well, it appears I was correct. New York personal injury attorney Eric Turkewitz decided he would call Elizabeth Mulvey, the lawyer who represented the plaintiffs in the case against the Flea. First, it appears that, similar to Mark Twain, reports of his demise were greatly exaggerated. There was no Perry Mason moment like reported by the Boston Globe Even more significant is the fact that several witnesses had already been called in the case, including several experts. Mulvey had already called the Flea in her case in chief and cross examined him. Once some of the other experts had testified, he was recalled. Not unusual in a medical negligence case since scheduling out of town expert witnesses for trial often involves breaking up other witnesses testimony. So, according to Turkewitz, here is how the Flea was outed: "Mulvey scoured his blog for helpful information, much the way any attorney would review writings produced by a witness for the other side. She found a post where Flea referred to Nelson's Pediatrics as the bible of pediatrics. (I have the 11th ed. from 1979 on my own bookshelf.) So she asked him on the witness stand if he considered Nelson's the bible for pediatrics. He said no. Lawyers call that a "prior inconsistent statement" that allows us to confront the witness with the other statement. That meant asking him if he was Flea and confronting him with the blog posting." So, there you have it. Was the Flea's outing his undoing in the trial? Ultimately, only the Flea and his attorneys know; however, considering it was the 5th day of trial, it is highly likely the settlement was the result of the facts of the case and how it was coming into evidence as opposed to Flea's blog. And that's the way it should be. Hans Poppe

Why Are Health Care Costs Increasing?

Mon, 17 Nov 2008 08:00:00 EST

Interesting blogs outline the real reasons healthcare costs are increasing. And it has nothing to do with lawyers. One of the major reasons is the costs of drugs...and the reason they cost so much (profits). Hans Poppe

Three fen-phen Lawyers Indicted

Mon, 17 Nov 2008 08:00:00 EST

Well, it finally happend. Three of the four Fen-Phen lawyers were indicted by for conspiracy to commit wire fraud by a federal grand jury for their role in a multi-million dollar drug settlement. If you are unfamiliar with the allegations, read them here and here The Covington, Kentucky grand jury accused Melbourne Mills Jr., Shirley Cunningham Jr., and William Gallion each of one count of fraud and demanded that they forfeit $46 million in misappropriated funds and more than $21 million in fees that had parked in a charitable fund. The Courier Journal has been following the case since its beginning and reports "The civil case has been marked by some sensational disclosures. Mills testified in a deposition that the lawyers "tore up or burned" notes showing how much they paid themselves and their clients. He said that he and Gallion and Cunningham held a secret meeting at Gallion's house in 2001 to divide an extra $10 million beyond what they'd already paid themselves from the settlement. Mills also said Gallion and Cunningham initially withheld another $27.7 million, which they turned over to their clients only after the Kentucky Bar Association began investigating the case, newly filed court records show. Mills said the additional payments also came only after he discovered that the settlement was for $50 million more than the other two lawyers had told him – and after he confronted Gallion at a party and called him a "thief." A month later, Gallion and Cunningham sought and received a judge's permission to distribute the additional money. The Courier-Journal also has disclosed that Modlin and Bamberger were partners in a real-estate business and that they now own a Florida home together, along with another judge.

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IX Albert Einstein $10 million

X Michael Crichton $9 million

XI Aaron Spelling $8 million

XII Jimi Hendrix $8 million

XIII Andy Warhol $6 million

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I Yves Saint Laurent
$350 million

II Rodgers & Hammerstein
$235 million

III Michael Jackson
$90 million

IV Elvis Presley
$55 million

V J.R.R. Tolkien
$50 million

VI Charles Schulz
$35 million

VII John Lennon
$15 million

VIII Dr. Seuss
$15 million

IX Albert Einstein
$10 million

X Michael Crichton
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XI Aaron Spelling
$8 million

XII Jimi Hendrix
$8 million

XIII Andy Warhol
$6 million