Attorney Blog

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

hans@poppelawfirm.com (Blog Author)36289 — 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.

hans@poppelawfirm.com (Blog Author)35756 — 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...

hans@poppelawfirm.com (Blog Author)34948 — Sun, 11 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

hans@poppelawfirm.com (Blog Author)33834 — Mon, 21 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.

Ohio Supreme Court Rules Cops Can "Eyeball" Speeding Motorists

hans@poppelawfirm.com (Blog Author)33820 — 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.

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

hans@poppelawfirm.com (Blog Author)33819 — 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.

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

hans@poppelawfirm.com (Blog Author)33382 — 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.

hans@poppelawfirm.com (Blog Author)32995 — 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....

hans@poppelawfirm.com (Blog Author)32509 — Sun, 30 May 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.

hans@poppelawfirm.com (Blog Author)31637 — 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

hans@poppelawfirm.com (Blog Author)30493 — 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.

hans@poppelawfirm.com (Blog Author)29828 — 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!

hans@poppelawfirm.com (Blog Author)28179 — Sat, 13 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....

hans@poppelawfirm.com (Blog Author)27807 — 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)

hans@poppelawfirm.com (Blog Author)27720 — Thu, 04 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....

hans@poppelawfirm.com (Blog Author)27455 — Sun, 28 Feb 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

hans@poppelawfirm.com (Blog Author)27454 — Sun, 28 Feb 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

hans@poppelawfirm.com (Blog Author)27453 — 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

hans@poppelawfirm.com (Blog Author)27428 — 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.....

hans@poppelawfirm.com (Blog Author)25763 — 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...

hans@poppelawfirm.com (Blog Author)23292 — 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....

hans@poppelawfirm.com (Blog Author)22962 — 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....

hans@poppelawfirm.com (Blog Author)21349 — 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

hans@poppelawfirm.com (Blog Author)21228 — 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

hans@poppelawfirm.com (Blog Author)20525 — 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?

hans@poppelawfirm.com (Blog Author)19326 — 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.....

hans@poppelawfirm.com (Blog Author)18372 — Tue, 15 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...

hans@poppelawfirm.com (Blog Author)18371 — 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

hans@poppelawfirm.com (Blog Author)17494 — 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

hans@poppelawfirm.com (Blog Author)17331 — 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.....

hans@poppelawfirm.com (Blog Author)17003 — 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

hans@poppelawfirm.com (Blog Author)16907 — 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

hans@poppelawfirm.com (Blog Author)16872 — 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....

hans@poppelawfirm.com (Blog Author)16714 — 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....

hans@poppelawfirm.com (Blog Author)16658 — 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....

hans@poppelawfirm.com (Blog Author)15999 — Tue, 28 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....

hans@poppelawfirm.com (Blog Author)15916 — 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....

hans@poppelawfirm.com (Blog Author)15749 — 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...

hans@poppelawfirm.com (Blog Author)15646 — 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

hans@poppelawfirm.com (Blog Author)15315 — Tue, 14 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."

hans@poppelawfirm.com (Blog Author)14782 — 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

hans@poppelawfirm.com (Blog Author)14393 — 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...

hans@poppelawfirm.com (Blog Author)14088 — 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...

hans@poppelawfirm.com (Blog Author)13573 — 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

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

hans@poppelawfirm.com (Blog Author)13252 — 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

Kentucky Nursing Home Added to Federal Oversight List

hans@poppelawfirm.com (Blog Author)11781 — 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....

hans@poppelawfirm.com (Blog Author)11756 — 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."

hans@poppelawfirm.com (Blog Author)11532 — Sun, 03 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?

hans@poppelawfirm.com (Blog Author)11346 — 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....

hans@poppelawfirm.com (Blog Author)11240 — 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

hans@poppelawfirm.com (Blog Author)10803 — Thu, 09 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....

hans@poppelawfirm.com (Blog Author)10288 — Wed, 25 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

hans@poppelawfirm.com (Blog Author)10265 — 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

hans@poppelawfirm.com (Blog Author)10238 — 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

hans@poppelawfirm.com (Blog Author)10080 — Wed, 18 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)

hans@poppelawfirm.com (Blog Author)9990 — 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.

hans@poppelawfirm.com (Blog Author)9213 — 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

hans@poppelawfirm.com (Blog Author)8990 — Tue, 10 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

hans@poppelawfirm.com (Blog Author)8878 — Sat, 07 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

hans@poppelawfirm.com (Blog Author)8876 — Sat, 07 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

Was Your Credit Card Information Stolen...

hans@poppelawfirm.com (Blog Author)8491 — 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

Revealed: Top Ten Worst Winter Driving Mistakes...

hans@poppelawfirm.com (Blog Author)8413 — Sun, 25 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 is The Most Dangerous Day of the Year to Drive...

hans@poppelawfirm.com (Blog Author)8412 — 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

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

hans@poppelawfirm.com (Blog Author)8411 — Sun, 25 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...

hans@poppelawfirm.com (Blog Author)8410 — Sun, 25 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

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

hans@poppelawfirm.com (Blog Author)8409 — Sun, 25 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.

hans@poppelawfirm.com (Blog Author)8408 — 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.

Countrywide Data Breach Litigation

hans@poppelawfirm.com (Blog Author)8391 — 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?

hans@poppelawfirm.com (Blog Author)8207 — Sun, 18 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...

hans@poppelawfirm.com (Blog Author)7850 — Mon, 05 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

hans@poppelawfirm.com (Blog Author)7849 — Mon, 05 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...

hans@poppelawfirm.com (Blog Author)7714 — Thu, 01 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

hans@poppelawfirm.com (Blog Author)7713 — 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

USA Today Study Reveals Non-Profit Nursing Homes are Better

hans@poppelawfirm.com (Blog Author)7388 — 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

How Some Madoff Investors May Recover Their Losses

hans@poppelawfirm.com (Blog Author)7380 — Wed, 17 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

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

hans@poppelawfirm.com (Blog Author)7364 — 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

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

hans@poppelawfirm.com (Blog Author)7293 — Mon, 15 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

hans@poppelawfirm.com (Blog Author)7249 — 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

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

hans@poppelawfirm.com (Blog Author)7248 — Fri, 12 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

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

hans@poppelawfirm.com (Blog Author)7222 — Thu, 11 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.

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

hans@poppelawfirm.com (Blog Author)7220 — Thu, 11 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

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

hans@poppelawfirm.com (Blog Author)7152 — Tue, 09 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

hans@poppelawfirm.com (Blog Author)7085 — Sun, 07 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

hans@poppelawfirm.com (Blog Author)7083 — Sun, 07 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...

hans@poppelawfirm.com (Blog Author)7082 — 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

Louisville Hosptial Baptist East Cited By Medicare In Suicide Death

hans@poppelawfirm.com (Blog Author)7070 — 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

Paralyzed Girl Settles Case Against Beer Vendor for $25 Million

hans@poppelawfirm.com (Blog Author)7061 — 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

Jury Awards $23.5 Million in Semi Truck Wreck Lawsuit

hans@poppelawfirm.com (Blog Author)6991 — 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

Kentucky Nursing Home Abuse Caught on Video Tape

hans@poppelawfirm.com (Blog Author)6948 — 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

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

hans@poppelawfirm.com (Blog Author)6938 — Tue, 02 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

Survey Finds Link Between Arrogant Doctors and ....

hans@poppelawfirm.com (Blog Author)6923 — 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....

hans@poppelawfirm.com (Blog Author)6434 — 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

What Kentucky Residents Injured in Indiana Car Wrecks Need To Know

hans@poppelawfirm.com (Blog Author)6218 — Sat, 15 Nov 2008 08:00:00 EST

Today's Courier Journal had an article about a horrible car wreck that occurred in Indiana and injured several Kentucky residents and killed one. According to the article, two people were killed and five others were injured in a multivehicle crash yesterday on Ind. 111 in Floyd County. The wreck -- initially a collision of a sport utility vehicle and a minivan -- just before 8:30 a.m. shut down the two-lane highway, the main route to the Horseshoe Casino in Harrison County, for about four hours. Authorities said the road was wet from rain and that likely contributed to the series of collisions. The two drivers who died were identified as Rosalind Bethea, 45, of Louisville, and Morris "Mo" Weldon Jr. , 46, of Scottsville, Ky. The injured were taken to University Hospital in Louisville, where they were reported in stable condition. They were identified as Bocchichio Henegar, 28, Bethea's daughter and a passenger in the SUV; Teresa Collard, 46, of Scottsville, Weldon's passenger; Ruth Clephante, 71, of Wilder, Ky., the driver of the minivan; and her passengers, husband David Clephante, 75, and Bob McCoy, 84, also of Wilder.

Even though Kentucky and Indiana share a border, that's about all they share when it comes to personal injury law, especially when it comes to car wrecks. As a lawyer licensed in both Kentucky and Indiana, I often get frustrated with the Indiana laws.
Here are some of the differences between Indiana law and Kentucky law:
Kentucky has pure comparative fault. This means that if the jury finds the plaintiff partly at fault for the wreck, the plaintiff can still recover for the fault apportioned to the other driver, even if it's on 1%. Indiana, has modified comparitive fault, meaning if the plaintiff is 50% or more at fault, the plaintiff recovers nothing.

In Kentucky, if the at fault driver doesn't have enought insurance to compensate the plaintiff for her injuries, the plaintiff can make an claim against her own insurance if she has purchased underinsured motorists coverage. The plaintiff can recover 100% of the at-fault driver's insurance and up to 100% of their own underinsured coverage. However, in Indiana, a driver's underinsured coverage is reduced by the amount of liability coverage carried by the at-fault driver. For example , in Kentucky if the at-fault driver has $100,000 in coverage and the injured person has $200,000 in underinsured coverage available, the injured person has up to $300,000 in coverage available. In Indiana, you would only have $200,000 in coverage available because the underinsured coverage is set off by $100,000 liability coverage available.
In Kentucky, an injured party can recover 100% of the medical bills. In Indiana you can only recover for the amount of medical bills that were actually paid.

These are just a couple of differences between Indiana and Kentucky auto accident and injury law. We hope the victims of this wreck hire a lawyer experienced with Indiana law.

Poppe Law Firm November 2008 Newsletter

hans@poppelawfirm.com (Blog Author)6201 — Fri, 14 Nov 2008 08:00:00 EST

Click here to view our November 2008 Newsletter.

Legal Malpractice of a Legal Malpractice Case?

hans@poppelawfirm.com (Blog Author)6198 — Fri, 14 Nov 2008 08:00:00 EST

Today the Court of Appeals of Kentucky rendered an opinion that may result in a legal malpractice case within a legal malpractice case. In Ronald Manning and Manning Family Trust v. Wilkinson and Stoll Keenon & Ogden, 2005-CA-002491, the court of appeals affirmed the Fayette Circuit Court's dismissal of a legal malpractice case filed against the law firm of Stoll Keenon & Ogden and one of its attorneys.
The original dismissal by the trial court was based on the the failure of the attorneys to prosecute the legal malpractice case they filed against Stoll Keenon. Kentucky has a "house keeping" rule that requires circuit court judges to dismiss cases that have been inactive for over a year (CR 77.02). According to the appellate opinion, the circuit court issued three notices that the legal malpractice case would be dismissed unless someone started doing some work on the case. Apparently, no one ever moved the case along and the trial court dismissed the case against Stoll Keenon. The Court of Appeals affirmed the dismissal.
One has to now wonder if the clients will hire a lawyer to sue the lawyers that they hired to sue their other lawyers. What a mess.

Thirty Year Old Medical Malpractice Case is Now Legal Malpractice Case

hans@poppelawfirm.com (Blog Author)6019 — Sat, 08 Nov 2008 08:00:00 EST

An appellate court in New York has allowed a client to sue her lawyers over her her 30 year old medical malpractice case even though the lawyers say they fired the client 3 years before she fild her legal malpractice suit. Generally, the statute of limitations bars a person from pursuing a claim if the suit is not timely filed. In some states, like Kentucky, the statute doesn't start to run when the malpractice occurs, but when the attorney-client relationship terminates. So, for example, if a lawyer failed to file your car accident case but didn't tell you for three years, the statute would be "tolled" until you learned of the malpractice (the discovery rule) and then terminated the relationship.
They New York court determined that even though the claim was three years old, the lawyers never clearly indicated to the client that they were not going to be pursing the case. Because the relationship was never clearly terminated, the court held that the client could go forward with her lawsuit for the lawyers failing to properly file her medical negligence suit.

Is A Negligent Attorney Entitled To A Fee in Kentucky

hans@poppelawfirm.com (Blog Author)5974 — Thu, 06 Nov 2008 08:00:00 EST

One of the questions I am often asked about by potenial clients that are exploring legal malpractice actions against their current or former attorneys is whether the current attorney will still be entitled to a fee if they fire the attorney. This situation generally arises when an attorney has not handled a personal injury case properly, but the client still recovers some money (although not as much as they would have received had the attorney not been negligent) or, they attorney is hired on an hourly basis but performs negligently and the client wants to know if they are entitled to a refund of the fees they paid the negligent lawyer.
The law in most states, including Kentucky, is that a negligent lawyer is not entitled to the contractual fee if he or she is fired for cause. In fact, Kentucky has a specific statute that entitles a client to a refund if the lawyer is negligent. Or, to put it another way, if a lawyer is negligent, they can be sued and the fee they received becomes another element of damages.
Hans

Louisville Mother Loses Lawsuit Against Louisville Metro Police

hans@poppelawfirm.com (Blog Author)5842 — Thu, 30 Oct 2008 08:00:00 EST

Attorneys Will Driscoll and Davied Friedman recently tried a very interesting wrongful death case in federal court in Louisville, Kentucky against the Metro Police department. The basic facts of the case are that a young woman was murdered by her boyfriend following several abusive episodes. A warrant for his arrest was taken out; however, it was never served. Believe it or not, generally speaking, neither the fire department, EMS, 911, or the police have any affirmative duty to protect or rescue us. To state it another way, if one of these entities fails to protect or rescue us from another person, they can't be sued. Here is the Courier-Journal story.
Regardless of the outcome of the suit, it does illustrate a real problem...domestic violence. It also higlights the flaws in our system. I congratulate Will and David in their success of bringing this issue to light.
Hans

AIG Agrees to Pay $18 million dollars to settle personal injury lawsuit....

hans@poppelawfirm.com (Blog Author)5722 — Mon, 27 Oct 2008 08:00:00 EST

In what can only be described as a highly unusual situation, AIG (the insurer that has recently come under fire for its lavish spending following a bail-out by the Government) has agreed to pay a North Carolina man $18 million to satisfy a $75 million personal injury judgment. Here is the story as reported by TradingMarkets.com.

American International Group, the major insurance company that received an $85 billion federal bailout for risky financial practices, has agreed to pay $18 million to a former North Raleigh man who was completely disabled when a pickup truck hit him in the parking lot of his apartment.The settlement appears to be one of the largest in the state's history for a personal injury case, local lawyers say, and it was driven by the fact that AIG was already on the hook for a much larger judgment -- $75 million -- after a subsidiary did not defend the case in Wake Superior Court.

"That's huge," said Dan Hartzog, a veteran civil litigator in Raleigh who was not involved in the case. "It would be a big jury verdict, but it's a really big settlement."

Such settlements rarely become public, but the details were discussed in an open session of U.S. District Court earlier this month with a News & Observer reporter in attendance. Lawyers for both sides had sought to keep the settlement confidential, but U.S. District Judge Terrence Boyle did not take up their request.

They also said they were moving to settle quickly because of AIG's financial straits. In September, the Federal Reserve provided the company with an $85 billion loan to keep it from going bankrupt.

In settling the case, AIG avoids what would have been one of the largest judgments in North Carolina history. In May, state Superior Court Judge Orlando Hudson granted the request of accident victim Mark Pellegrin's attorneys for damages of $75 million after no one showed up for trial to defend the company that owned the pickup truck and the employee who drove it.

National Union Fire Insurance Co. of Pittsburgh, the AIG subsidiary, requested the case be moved to U.S. District Court after the judgment and entered into settlement talks with Pellegrin's attorneys.

Pellegrin's father, Jerry, a long-distance truck driver, told the court that he was satisfied with the settlement, which provides $6 million immediately, invests another $6 million for future costs, and pays Mark Pellegrin's attorneys the remaining $6 million to satisfy the contingency fee contract Pellegrin's father struck with them.

Compassion showed

"I'd like to say that I'm not a big fan of lawyers myself," Jerry Pellegrin said. "However, these three people have shown me and my son more compassion than I ever thought."

Boyle accepted the settlement, but he reserved judgment on the attorneys fees.

Mark Pellegrin, 29, is being cared for at his father's home near Houma, La.

One of National Union's attorneys, Jim Exum, a former N.C. Supreme Court chief justice, told the court that the insurance policy had a maximum payout of $21 million.

The lawsuit was filed last year against KCI Technologies and one of its employees, Kelly Joe McKiernan, 29, who performed maintenance on the company's cell phone towers. KCI Technologies is a Maryland-based engineering and construction company with more than $140 million in revenue last year.

New Year's Eve

McKiernan said in a deposition that, on New Year's Eve 2005, after drinking beer and Jagermeister, he jumped into his company-issued truck and put it in gear. He was ready to leave Pellegrin's home at Sommerset Place Apartments -- off Six Forks Road in North Raleigh -- after some rough-housing between the two friends left McKiernan upset.

But as McKiernan put the truck in drive, Pellegrin ran in front of the vehicle to try to get him to stop.

McKiernan hit Pellegrin, whose head struck the truck and then the pavement. Pellegrin suffered severe brain injuries, and today he has limited movement and speech. He needs round-the-clock care, medical records showed.

"I'm sure he was just coming down to tell me, 'You know, man, what are you doing, Kelly? You're drunk, dude. You know better than this,' " McKiernan said in the deposition.

No conviction record

Raleigh police charged him with driving while impaired, according to a police report filed as an exhibit with the court papers. But there's no record of McKiernan being convicted of the charge.

Efforts to reach McKiernan for comment were unsuccessful.

AIG refused responsibility for the accident, saying McKiernan had been drinking, which was in violation of KCI's vehicle use policy, and was not on the job when the accident happened.

That meant Pellegrin would receive little or no help for his injuries and subsequent care -- despite the fact that he worked for KCI as well. He, in fact, was McKiernan's boss and had hired him.

The men grew up together in Texas.

Pellegrin's attorneys argued that McKiernan was at work when he went to Pellegrin's apartment. McKiernan said that Pellegrin wanted him to stop by to make sure the truck had the proper equipment before McKiernan went out to inspect cell phone towers. But while they were looking over the truck, the two friends from Texas decided to take a break. They drank beer and Jagermeister, McKiernan said in the deposition.

Hudson, the Superior Court judge, found McKiernan had been acting within the scope of his employment, and therefore the insurer was responsible for the $75 million judgment.

Hartzog and other local civil litigation attorneys not involved in the case said that's the price defendants can pay when they don't appear in court.

"That is a litigator's dream," said Richard Watson, a Durham attorney.

(News researcher Lamara Williams contributed to this report.)

dan.kane@newsobserver.com or 919-829-4861

Hans Interviewed for LawyersUSAOnline on Settlement v. Trial

hans@poppelawfirm.com (Blog Author)5304 — Mon, 13 Oct 2008 08:00:00 EST

A while back I was interviewed about a blog post I did on the risks of proceeding to trial versus taking the insurance company's offer. Here is the interview

New study suggests it pays to settle

By Justin Rebello
Staff writer

Plaintiffs' lawyers who feel their clients have more incentive to go to trial than settle are in for a rude awakening.

A new study has found that a majority of plaintiffs who reject a settlement offer and proceed to trial are awarded less money than if they had taken the initial offer.

The study, conducted by Palo Alto, Calif.-based legal consulting firm DecisionSet, found that in 61 percent of cases in which a settlement offer was refused, the plaintiff wound up winning less at trial.

According to the study, plaintiffs who failed to settle received an average of $43,000 less than plaintiffs who accepted a pre-trial settlement offer.

Defendants made the wrong decision by going to trial in only 24 percent of cases. But that decision cost them far more – an average of $1.1 million per case.

The findings were based on a sample of 2,054 civil cases that went to trial between 2002 and 2005.

"It's critical for lawyers to understand that decision error rates and cost of error can vary significantly by case," said Randall L. Kiser, a co-author of the study and a principal analyst at DecisionSet. "We can draw a lot of conclusions from the set of cases we studied that plaintiffs were better off taking the settlement."

Kiser attributed the disparity between settlement offers and trial awards to effective mediation.

The results of the study are not surprising, said plaintiffs' attorney Hans G. Poppe of the Poppe Law Firm in Louisville, Ky. He said most defendants, which are typically insurers in personal injury cases, will often offer more in a settlement to keep the matter from going to trial.

"Insurance companies are the most litigious industry of all," Poppe said. "They have a lot of information on how to make a decision on how much to offer, more than any individual plaintiff or lawyer could ever amass. They have extremely good data on how to make a statistically valid decision on how much to pay on a claim."

From a marketing perspective, the study could suggest a new way for attorneys to advertise their services as risk reducers.

"If you are a litigator, the best way to get new clients is to market yourself as a problem avoider," said Larry Bodine, a Glen Ellyn, Ill.-based legal marketing expert. "Most litigators market themselves as fire-breathing trial lawyers, but that's not necessarily what plaintiffs want. Often plaintiffs want a lawyer who will keep them out of court."

Case variables

While some attorneys have dismissed the study because of differences between cases, Kiser said that his team analyzed 19 such variables, including the type of case, insurance coverage and the gender of the parties and their attorneys.

The study found that "context" variables, such as case type, damages requested and forum, were more predictive of adverse trial outcomes than "actor" variables, such as attorney experience and firm size.

Part of the study involved a sample of 4,532 civil cases from 1964 to 2004, during which time both the frequency and cost of decision-making errors skyrocketed.

Plaintiffs obtained worse results at trial than they would have gained from a settlement in 54 percent of the cases in 1964, and in 66 percent of cases in 2004. The proportion of cases that were error-free, in that neither the plaintiffs nor the defendants made a decision error, decreased from 27 percent in 1964 to 14 percent in 2004. Adjusted for inflation, the cost of plaintiffs' decision errors has increased three-fold.

The study will be published in the September issue of the Journal of Empirical Legal Studies. Along with Kiser, the study was co-authored Martin A. Asher, an economist at the University of Pennsylvania and Blakeley B. McShane, a graduate student at the University of Pennsylvania.

Questions or comments can be directed to the writer at: justin.rebello@lawyersusaonline.com

Watch Hans' Opening Statement in Carroll v. Hornung

hans@poppelawfirm.com (Blog Author)5239 — Fri, 10 Oct 2008 08:00:00 EST

Thanks to TechnoEsq for choosing my Opening Statement in my recent medical malpractice trial to highlight on www.TechnoEsq.com. This case was tried in Jefferson, County, Louisville, Kentucky. You can go watch my entire Opening in Carroll v. Hornung, et al as well as the Openings of all of the defense attorneys.
For a summary of the case, you can read the Kentucky Trial Court Review's summary of the trial.
Hans

Courier Journal Interviews Candidates for Kentucky Supreme Court

hans@poppelawfirm.com (Blog Author)5219 — Fri, 10 Oct 2008 08:00:00 EST

Recently the Courier Journal sat down with both candidates running for a seat on the Kentucky Supreme Court. The incumbent was appointed by Gov. Ernie Fletcher to fill the seat left behind by the untimely passing of Justice WIlliam McAnulty. Current Jefferson Circuit Court Chief Judge Jim Shake is running against her.

You may watch the CJ video of the interview with both candidates here.

You can learn more about Chief Judge Jim Shake and his campaign for election to the Kentucky Supreme Court by going to www.Shakein08.com

Hans

Fayette County, Kentucky Jury Awards $9.8 Million Dollars in Medical Malpractice Case

hans@poppelawfirm.com (Blog Author)5213 — Thu, 09 Oct 2008 08:00:00 EST

In what is typically considered a very conservative venue, last night a Fayette County jury returned the largest medical malpractice verdict of the year in Kentucky. The jury awarded over $9.8 million to a woman paralyzed following heart surgery.

Louisville attorney James "Bo" Bolus represented the patient and Richard Schiller represented the only doctor that did not settle prior to trial. You can read more about in the the Lexington Herald Leader article written by Brandon Ortiz.
Hans

New Video! Hans Explains Nursing Home Abuse and Neglect and Why It Occurs.

hans@poppelawfirm.com (Blog Author)5058 — Sat, 04 Oct 2008 08:00:00 EST

Check our out latest video, and download our FREE Report--Nursing Homes--What You Absolutely Positively Must Know Before Choosing One.

Kentucky Court of Appeals Takes Away $28 million Bad Faith Verdict

hans@poppelawfirm.com (Blog Author)4861 — Sat, 27 Sep 2008 08:00:00 EST

In a lengthy 72-page opinion, Kentucky's Court of Appeals has set aside a $28 million dollar verdict in a bad faith case. The original verdict was $10,000,000 in compensatory damages and $18,000,000 in punitive damages. The trial court reduced the punitive damages to $10,000,000 (likely to comport with a 1-1 ratio which is presumed constitutional). The Court of Appeals didn't think that was enough. The three justice panel ruled that the entire verdict was given under the influence of "passion or prejudice or both."
I'll give an in-depth analysis later, but here it is http://www.poppelawfirm.com/library/Cincinnati_Insurance.pdf
Hans

Follow Up: Just How Bad is Duke Football

hans@poppelawfirm.com (Blog Author)4740 — Mon, 22 Sep 2008 08:00:00 EST

In a follow-up to a blog post I did earlier about the contract dispute between Duke University and the University of Louisville, my friend James Cole sent me the following video link of Duke's attorney. Here, she explains why Duke should not be forced to pay Louisville for breaching its contract to play Louisville in football. Enjoy and GO CARDS!

hans

Bullitt County Nursing Home to Lose Federal Funding

hans@poppelawfirm.com (Blog Author)4563 — Sat, 13 Sep 2008 08:00:00 EST

According to the Courier Journal, Green Meadows Nursing Home in Bullitt, County Kentucky (one county south of Louisville, Kentucky) is losing its federal funding. Although the notice from the federal government did not state the specific reason funding was being terminated, it comes right on the heels of an August 11, 2008 Type A citation from the state of Kentucky (the most serious type). In order to issue a Type A citation, the state must determine that a resident's life or safety is endangered. The citation, issued as a result of a standard survey conducted Aug. 5-8, found that residents were injured by other residents. The citation said some residents were "slapped, choked, bitten, hit, kicked, and pinned against a wall" by other residents. "The facility was aware of these residents' combative behaviors but failed to provide supervision as needed to prevent further incidents, creating an atmosphere where residents were fearful for their safety," it said.
We handled a similar type of nursing home negligence case involving resident-on-resident abuse last year. Patients that demonstrate aggressive behavior have to be re-directed or given opportunities to engage in activities that distract them and focus their energies elsewhere. Often, this behavior is the result of some underlying medical issue that is not being addressed. The resident is scared or doesn't feel well or is lonely. The key is recognizing the issue and then formulating a patient specific care plan to address the resident's behavior. Sometimes medication is necessary (although it is often abused by nursing homes as a form of chemical restraint). If the nursing home is unable to control the resident's behavior while maintaining the resident's rights to personal dignity and self determination, then the facility has to transfer the resident to a facility that can provide a higher level of care and, perhaps, one on one care.
Often we see that facilities that have problems with resident on resident abuse simply don't have enough staff to handle the number of residents in the facility. Currently, Kentucky does not have any minimum staffing requirements for nursing homes, but it is something that we at the Poppe Law Firm strongly advocate and we are joined by many others, including Kentuckians for Nursing Home Reform.
The cabinet's directory of licensed facilities on its Web site shows Green Meadows is owned by Mount Washington Health Care LLC. Earlier this year the federal government released its "bad list" of Kentucky nursing homes, Green Meadows was not on the list at that time.
hans

Jury Awards Hans' Client $5.1 Million Dollar Verdict in Medical Malpractice Case

hans@poppelawfirm.com (Blog Author)4318 — Mon, 01 Sep 2008 08:00:00 EST

We just finished a two-week medical malpractice trial on Friday and I'm excited to report that the jury returned a $5.1 million dollar verdict in favor of Mrs Retha Carroll. Soon we'll post video of the opening and closing. This was an extremely satisfying verdict for a number of reasons. The case was in litigation since 2004 and involved 6 defendants and 8 defense lawyers at trial. At times it felt as though we were litigating against every defense lawyer in Louisville. The verdict is significant for a number of reasons. First, our client was 75 when he died as a result of the malpractice. Typically, juries don't make significant pain and suffering awards in cases involving elderly people. Here, a jury did the right thing by recognizing that pain is pain, regardless of whether you are 25 or 75. It is also significant because of the loss of consortium award to the wife. A jury appreciated the catastrophic loss that she felt for six days while her husband of 53 years lay in a coma. I believe it may be the largest consortium verdict of its kind in Kentucky.
Once again, I remain convinced in the wisdom of our jury system. You may read the article from the Courier Journal by going here.
hp

To settle or not to settle, that is the question.

hans@poppelawfirm.com (Blog Author)3905 — Mon, 11 Aug 2008 08:00:00 EST

According to this recent article in the New York Times, plaintiff who reject settlement offers and roll the dice at trial are statistically likely to get less money than if they had taken the settlement. According to the article, “The lesson for plaintiffs is, in the vast majority of cases, they are perceiving the defendant’s offer to be half a loaf when in fact it is an entire loaf or more,” said Randall L. Kiser, a co-author of the study and principal analyst at DecisionSet, a consulting firm that advises clients on litigation decisions.
The study was based on over 2000 trials and it concluded that about 60% of the time the plaintiff (the person bringing the suit) got a worse deal that the settlement offer they rejected .The study, which is to be published in the September issue of the Journal of Empirical Legal Studies, found that plaintiffs typically received about $43,000 less at trial. And, while defendants typically do better at trial, when they don't the results are far more pronounced. When a defendant gambles wrong and goes to trial, statistically they end up paying about $1.1 million dollars more.
I found this article to be particularly interesting based on my own (completely non-scientific) observations. Most medical malpractice insurance policies give the doctor the absolute consent to settle a malpractice suit. That's not to say the insurance company has to settle the case if the doctor gives consent, but the insurance company usually cannot settle the case until the doctor gives his/her consent. What this means, is that the healthcare provider is much more willing to take the risk of going to trial if the likely verdict is less than his/her policy limits. Most medical doctors carry about $1 million dollars in coverage. If the verdict is likely to be $1 million or less, the doctor has no reason to settle the case because there is not much of a chance the doctor will have to pay any money out of his/her own pocket. On the other hand, if the exposure to the doctor is significantly more than the $1 million in coverage, the doctor is much more likely to give consent in order to avoid his personal assets being at risk.
Hans
p.s. Thanks to John Day in Nashville for bringing this article to my attention.

Allstate Hit for $10 million in Bad Faith Case--Drunk Driver Now a Millionaire....

hans@poppelawfirm.com (Blog Author)3762 — Sat, 02 Aug 2008 08:00:00 EST

Now here is a truly unusual bad faith insurance case against Allstate.

What's unusual is not that Allstate was found to have acted in bad faith in denying the payment of an automobile accident claim, what's unusual is that the facts play out so that the at-fault driver (who was drunk) will actually become a millionaire as a result of Allstate's refusal to pay his policy limits to the people he injured in a car accident.

In short, here are the facts: Allstate Insurance Company was found to have acted in bad faith for refusing to pay its insured's $50,000 policy limits to two severly injured people. To be more precise, a jury returned a verdict against Allstate for $5.8 million in compensatory damages and $10.5 million in punitive damages. According to the Missouri Court of Appeals, Allstate did not settle a demand for insurance policy limits of $50,000 made against its insured, Wayne Davis, Jr., by Edward and Virginia Johnson. The Johnsons made the demand after Davis drove across the center line of a Camden County highway in March 2000, and crashed head on into the Johnsons' car. The Johnsons suffered life-threatening injuries that required extensive hospital treatment and medical bills of over $300k. After Allstate failed to settle, the Johnsons sued Davis. Davis consented to a $5 million judgment and negotiated a settlement agreement. As part of the settlement, the Johnsons agreed not to collect any of the $5 million judgment from Davis in exchange for his assigning to the Johnsons 90 percent of his claim against Allstate for bad faith refusal to settle. The Johnsons and Davis jointly sued Allstate for bad faith refusal to settle a claim and for equitable garnishment.

Note that I said Davis only assigned 90% of his claim. This means he is entitled to 10% of the $10.5 million in punitives, or about a million dollars. While at first blush, this may seem unfair, a closer examination of the facts shows why it may not be so far afield.

Davis immediately admitted he was drunk and responsible for the accident. The Johnson's lawyer demanded Davis' small insurance policy early and often--Allstate refused to pay it. More importantly, Allstate never told Davis that he was financially responsible for any judgment over and above his policy limits should the case proceed to trial and a jury render a verdict of more than $50k. To say it in other words, Allstate failed to protect its insured by settling the case for 50k when it had the chance and thereby exposed him to a potential verdict of millions of dollars. That is what's known as first party bad faith. When the insurance company gambles with the money and assets of its insured, they are violating the contract of insurance and should be held responsible.

hans

Foxes in the Hen House- State has to fire Two Kentucky Nursing Home Inspectors...

hans@poppelawfirm.com (Blog Author)3570 — Tue, 22 Jul 2008 08:00:00 EST

According to the Courier-Journal, the Kentucky has fired a second state employee arsing out of allegations of misconduct. On May 21, the state fired a nursing home inspection official with the Department of Public Health. The State determined that Moses Young had been living rent free in a Lexington townhouse owned by a company operated by a Covington nursing home president, Ralph L. Stacey, Jr. Now, it turns out that Young had a roomate, Sharon Harris, a former nurse administrator with the Department of Public Health. Both have denied any wrongdoing.

Young has been unable to provide any proof that he paid his own rent and Harris has refused to provide any information bout the townhouse in which she currently lives. According to the Courier, this is not the first time Harris has been fired for a potential conflict with Stacey's nursing homes. In 2002, while working as a nurse consultant for the state Medicaid Department, she was fired for having a second job working at one of Stacey's nursing homes. Although she was fired, she one an appeal and was reinstated. Harris claims she has been singled out by the office of the Inspector General.

Fen Phen Judge Says He Won't Participate in Re-trial

hans@poppelawfirm.com (Blog Author)3387 — Tue, 08 Jul 2008 08:00:00 EST

In the continuing saga of the Fen Phen Fiasco...

As if the acquital of Melbourne Mills and the subsequent mistrial of the case against William Gallion and Shirley Cunningham wasn't weird enough. Now, Judge William Bertelsman refuses to hear the re-trial. Yesterday, Judge Bertelsman indicated that, not only will he not be the judge on the re-trial of the Fen Phen defendants, he won't hear any more criminal cases at all.
Because Judge Bertelsman is a senior judge, he has the option of limiting his case load.
While Bertelsman did not comment further on the reasons why he no longer wants to participate in judging criminal cases, one has to assume that this case (and presumably the result) is the reason.
One must also assume that the re-trial will be presided over by Federal Judge Danny Reeves.
Judge Reeves was appointed to the federal bench in 2001. Prior to being appointed to the bench, Judge Reeves was an attorney at Greenbaum Doll McDonald's Lexington, Kentucky office from 1983-2001.
Although none of the lawyers have been convicted criminal, they are still the subject of a $45 million civil judgment for breach of fiduciary duty and they have all been suspended from the practice of law in Kentucky.
Hans

The Fen Phen Criminal Case Jury Has A Shocking Verdict....

hans@poppelawfirm.com (Blog Author)3312 — Tue, 01 Jul 2008 08:00:00 EST

Well, they don't have a complete verdict, but what the Northern Kentucky Fen Phen jury has returned is a shocking "not guilty" verdict for Melbourne Mills, Jr. The jury indicated they could not agree on a verdict for the other two defendants yet, Shirley Cunningham and William Gallion. Judge Bertelsman has given the jury an Allen charge and sent them back to continue deliberating. Many lawyers I have spoken to wonder if the jury instructions were too complicated and, perhaps, confused the jury. No one I have talked to expected the jury to deliberate 5 days, and NO ONE expected any aquitals. Stay tuned.

Hans

How Bad Is Duke Football.....

hans@poppelawfirm.com (Blog Author)3162 — Mon, 23 Jun 2008 08:00:00 EST

Duke University football is so bad that they can breach a contract to play the University of Louisville and not have to pay damages to Louisville. How is that? Well, the contract contained a damage provision that entitled UofL to $150,000 for each of the three games that Duke refused to play following the 2003 season. That was the Large Print; but the small print said Louisville was only entitled to damages if they could not find a team of equal caliber to replace Duke. Therein lies the Devil (pardon the pun) in the details. Duke's lawyers argued that the Blue Devils' performance on the field was so poor that any Division I team would suffice as a replacement. Duke is 6-45 over the past five years, 13-90 since 1999.

Judge Phillip J. Shepherd of the Franklin County (Ky.) Circuit Court agreed, according to the Louisville Courier-Journal.

"At oral argument, Duke [with a candor perhaps more attributable to good legal strategy than to institutional modesty] persuasively asserted that this is a threshold that could not be any lower," Shepherd wrote in a summary judgment issued Thursday, according to the paper. "Duke's argument on this point cannot be reasonably disputed by Louisville."

Thanks to Dean Chen of the University of Louisville School of Law for pointing this interesting legal story out in his blog

Hans

Could "I'm Sorry" Reduce Med Mal Lawsuits....

hans@poppelawfirm.com (Blog Author)3161 — Mon, 23 Jun 2008 08:00:00 EST

A while back I wrote in one of our newsletters about "The Power of the Apology" in the medical setting. Many healthcare facilites have adopted policies that focus on being honest with patients when medical mistakes have been made. While most facilities still practice behind the "white wall of silence" and bury most of their mistakes, some innovate and courageous hospitals have decided to break with business as usual and acknowledge their mistakes. Many of them are finding honesty is resulting in fewer lawsuits. Here is an article from the Lexington Herald leader on the subject.

hans

MANY HOSPITALS HAVE ADOPTED POLICY

By Jim Warren

JWARREN@HERALD-LEADER.COM

David Perry | Staff

Linda Cranfill, left, quality director, Ginny Hamm, attorney, and Dr. Steve Kraman, former chief of staff, all helped to develop the original VA policy of admitting medical errors. Photo by David Perry | Staff

It was an afternoon in 1987. The two grown children of a Kentucky woman who had died a few weeks earlier at Lexington's VA Medical Center arrived to hear details of their mother's death.

The children, who thought their mother had died of natural causes, had been asked to bring a lawyer.

When they sat down, Dr. Steve Kraman, then chief of staff at the VA hospital, made a startling admission: their mother had died because of a medication error made by a hospital staffer.

That meeting was the first major test of a pledge that Kraman and officials at the Lexington VA had adopted about a year earlier: the hospital would disclose all medical errors Ð even if it meant the threat of a malpractice lawsuit.

Today, that seemingly simple concept has become a model for many hospitals, medical insurers and health facilities around the country, as well as in some foreign countries. Major university medical centers -- including Johns Hopkins, Stanford and the University of Michigan -- have adopted all or parts of the program that started here. It also is standard policy at VA medical centers across the country.

The American Medical Association and the Joint Commission, the agency that accredits hospitals, both encourage disclosure of medical mistakes, following the general outline of the Lexington VA policy. And stories about the policy that started in the Bluegrass have recently appeared in the New York Times and other major newspapers.

The idea of a hospital "doing the right thing" by voluntarily admitting devastating medical errors might sound like insanity in today's litigious medical landscape. But hospitals that have tried the idea say it actually saves money by heading off expensive malpractice lawsuits and fostering rapid settlements of claims, often at amounts far less than would have been paid in protracted court battles.

For example, the University of Michigan Health System's chief risk officer recently told the New York Times that existing claims and lawsuits in the system dropped from 262 in August 2001 to only 83 in August 2007 after the university adopted a policy of full disclosure.

But things looked much less clear cut when Lexington VA officials made their first major disclosure that day in 1987.

Kraman recalls that the woman's children at first were shocked, then tearful, when they heard the story of how their mother had died. But if they had not made the admission, he said, the two almost certainly would never have known how their mother's death actually occurred.

"It was a situation where, in the tumult of taking care of a lot of patients, something was overlooked by somebody who otherwise was quite competent, and no one caught it," he said. "Once we had the evidence in front of us ... we knew we couldn't just sit on it. Our responsibility to the family outweighed the potential financial concern for the hospital."

'That felt good'

Ginny Hamm, who attended the meeting as regional counsel for the VA, said the family members were so grateful to get the truth that they and their attorney rapidly agreed to a settlement that cost much less than a lengthy lawsuit would have.

"The family members naturally were tearful and we had some moments of our own," she said. "But we told ourselves, 'That felt good; that felt right; this is the way we're going to do it from now on.'"

Linda Cranfill, quality director at the VA, says the disclosure policy actually grew out of a very down-to-earth goal -- saving money.

The Lexington VA had been hit with some large malpractice judgments in the early 1980s, totalling almost $2 million. Prompted by that, officials for the first time had launched a risk management program. The admission of the woman's death was the program's first big test, Cranfill said.

"We had started looking for a better way of doing things," she said. "Initially, the focus really was on protecting the institution. But it quickly moved to the next level of putting the patient and the patient's family at the top of the equation."

The Lexington VA made no public announcement of the new policy. Word really didn't start to spread until December 1999, when Kraman and Hamm wrote a report on the program for the medical publication Annals of Internal Medicine. Its title was "Risk Management: Extreme Honesty May Be the Best Policy."

The article got lots of attention -- partly because it came out right after a stunning federal report showing that medical errors were causing up to 98,000 deaths annually.

'Sorry Works!'

Suddenly, lots of doctors, hospital managers and news reporters wanted to know more about what the Lexington VA hospital was doing. Kraman recalled that news crews from around the country came calling, as did numerous hospital representatives, some from as far away as Australia. Hamm was invited to speak before medical groups, hospital associations and insurance companies in 39 states over the next two years.

Kraman said that while some doctors, and lawyers representing doctors, initially were taken aback at the idea of admitting errors, it began to catch on and facilities started adopting the VA program, or similar policies.

The Lexington VA never gave its program a name. But an Illinois publicist, Doug Wojcieszak, launched a program called "Sorry Works!" in 2004 that incorporated some of the main features of the VA program and advocated that doctors and hospitals fully disclose and apologize for medical errors.

Kraman, who now practices at the University of Kentucky, says some medical officials resist the idea of admitting errors. He noted that it's unclear just how many hospitals and medical groups have adopted disclosure policies because those that do often don't announce the fact.

"Some just don't want to talk about medical errors happening in their hospitals, no matter how they're handling it," he said.

Nevertheless, Kraman thinks medical disclosure will continue to be adopted by many hospitals and medical organizations.

"To me, the proof of the pudding is, would you do this even if you knew you could absolutely get away without admitting anything," he said. "If you could lock the information in a cabinet and walk away, would you still disclose it, even if you knew if might cost you half a million dollars?

"That's the question that really goes to the morality of a company or organization."

Why haven't we been blogging...

hans@poppelawfirm.com (Blog Author)3133 — Fri, 20 Jun 2008 08:00:00 EST

Sorry we haven't blogged in a few days, especially considering all of the recent Kentucky legal events, like the bombshells attorney Stan Chesley has been dropping in the Fen Phen trial and the two teenage girls asking to join the suit against Kentucky Kingdom for the tragedy that severed a Louisville girl's legs.
Not to mention the raging dispute at the Kentucky Bar Association's annual convention about whether Kentucky should adopt a "squeal rule" that would require lawyers to report each other to the bar association for suspected unethical behavior (I'm against it by the way, but that's fodder for another post).

But we have been working on our video section. Let us know what you think of the videos we added on Legal Malpractice and Insurance Bad Faith. Coming soon are videos on nursing home negligence and automobile and truck wrecks.

Hans

The Latest in the Fen Phen Fiasco

hans@poppelawfirm.com (Blog Author)3006 — Wed, 11 Jun 2008 08:00:00 EST

Well, according to the Courier Journal, William (Bill) Gallion is the first of the three fen phen lawyers to take the stand to try to defend their actions in the federal criminal action. According to the article, Mr. Gallion has justified the actions of the lawyers in taking more in fee than their contracts entitled them to because clients who may have gotten nothing in the national case, collected as much as $1.4million. "I thought that was a great result," Gallion said. All three lawyers already have been sued for breach of fiduciary duty and legal malpractice and lost a $40 million verdict.

Gallion also attempted to defend the lawyer's decision to divide the client's money without using a neutral third-party (as required by ethics rules) because, ""We wanted to use our own knowledge." He went on to explain that it would have taken too long to get a third party up to speed on the facts of each individual case.

Hogwash. I was personally involved in the settlement of the Roman Catholic Archdiocese of Louisville settlement in Louisville, Kentucky where we represented over 240 individual plaintiffs in a $25.7 million class action settlement. We hired a neutral third party, Matthew Garretson, to review and analyze each individual's damage claim. Matt reviewed the depositions (of those that had been deposed), as well as their interrogatory responses (answers to written questions asked by the Diocese's attorneys), our client notes on each individual plaintiff, and any additional written damage materal or medical records in our possession (or later supplied by our client) as well as voluntary video damage statements made by clients. Once Matt came up with his damage award for each individual plaintiff, the client could accept the award or "appeal" the award. We hired retired Kentucky Supreme Court Judge Nick King to act as the "appellate judge" to hear any challenges to Matt's initial damage award. Judge King then review all the materials and any additional materials supplied by the client, including an interview if necessary and he could confirm, increase, or decrease the award as he saw fit.

I think the entire process of damage allocation by Matt and Judge King took two months. It was honest, ethical, effect, and quick.

So what's their real excuse?

Hans

Doctor That Fought To Limit Damages In Medical Negligence Cases Now Sees The Harm It Can Cause

hans@poppelawfirm.com (Blog Author)2952 — Fri, 06 Jun 2008 08:00:00 EST

"When I helped spearhead the tort reform movement in Nevada, I didn't foresee the unintended consequences of innocent, truly injured individuals not receiving their rightful awards due to jurors' misguided emotions. Had I been aware of that possibility, what would I have done?"

Not words you would expect to hear from a doctor, but they are. Arnold Wax, M.D., a Nevada oncologist recently wrote an article that appeared in the online publication The Medical Economist. In it, he recounts how he began treating a woman with a skin lesion in 2002. The lesion was removed and sent to a pathologist for review. The pathologist diagnosed a non-cancerous condition. In 2004 the lesion returned. It was again removed and send to a pathologist, only this time it was read as being cancerous.
Dr. Wax was shocked. The pathologist that read the slide in 2002 admitted he misread the slide. Dr. Wax was asked to be an expert witness (doctor's very rarely ever agree to be an expert for their patient). in the lawsuit for a woman he describes as a delightful widowed grandmother taking care of her grandchildren.
Here is what he said: "The trial lasted six days. I was on the witness stand for two hours for direct and cross examination. I described the statistical decrease in Mary's five-year survival, as well as all treatment variations between the different stages of melanoma. I also stated that I thought the pathologist's admission of his mistake was "honorable." As I'd expected, the jury found the original pathologist negligent. But, to my surprise, Mary wasn't awarded any damages. One of her attorneys later told me that the jury wanted to pin an award on the pathologist's professional corporation, but it hadn't been named in the suit. The jurors reasoned that the pathologist had not acted maliciously, and that if he were found liable for a monetary award, he might leave the state. They were likely influenced by political ads that ran during the state's tort reform ballot campaign, describing physicians who were leaving Nevada because of its malpractice crisis.The trial judge was incensed by the verdict, because the jury didn't follow the legal standard that should have been applied in the case. I was later informed that the defense attorneys planned to go after Mary for court costs, something that the judge vowed he'd never let happen."
Dr. Wax concludes his article with the realization that he did not fully consider the impact the caps on damages he had fought for would have on patients who suffered legitimate injuries.
This is exactly what plaintiff's attorneys have been saying for years....
Hans

The new "hello" at your doctor's office: Sign Here Not to Sue Me

hans@poppelawfirm.com (Blog Author)2937 — Thu, 05 Jun 2008 08:00:00 EST

More and more, healthcare providers are attempting to take away a patient's right to seek compensation if the doctor makes a mistake that causes the patient injury. Most of us regular people have to take responsibility for our actions. If you cause a wreck, someone is likely to make a claim against your insurance. But for some reason, doctor's (read "really their insurance companies") don't want to be responsible for their mistakes when the injure or kill someone becuase of malpractice and they are forcing their patients to sign documents agreeing to waive their right to file a lawsuit in the future or they won't provide medical treatment. Don't do it!!
Here is a very interesting article on it from a Florida newspaper.
Hans

Jury Awards $21 million dollars against USF&G Insurance Company

hans@poppelawfirm.com (Blog Author)2932 — Wed, 04 Jun 2008 08:00:00 EST

In what is being reported as the largest verdict in Louisiana or Mississippi for post-Katrina claims handling, a New Orleans jury awarded a grocery store $21 million dollars for damages his stores received in the hurricane aftermath.
The jury heard evidence that United Fire & Casualty Insurance Co. acted in bad faith by delaying paying the claim becuase of the financial stress it was under. Attorney Phillip Franco represented the store owner and said the jury's decision came after hearing "that this insurance company delayed and refused to make payments because of the financial stress put on that company because they didn't purchase enough reinsurance to cover the extent of the catastrophic losses caused by Katrina."
Hans

Does Pre-Trial Publicity about the Kentucky Kingdom Case Taint the Jury?

hans@poppelawfirm.com (Blog Author)2925 — Tue, 03 Jun 2008 08:00:00 EST

Anyone who lives in or around Louisville, Kentucky has heard about the tragic events that caused catastrophic injuries to a young louisville girl at Kentucky Kingdom. Recently, a friend of mine asked my opinion about whether there was anything wrong with the publicity the case was receiving and could it have an impact on the fairness of the trial.

Pre-Trial publicity is governed by rules published by the Supreme Court of Kentucky that govern the conduct of all lawyers practicing in Kentucky. Specifically, pre-trial publicity is rule SCR 3.130(3.6). In short, it provides that there should be a balancing act between the public's right to have information about a case and the party's right to a fair and impartial jury.

In conducting the balancing inquiry, a lawyer should not make any statement "if the lawyer knows, or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding." There are severaly key phrases contained in that statement, including "substantial likelihood" "materially" and "prejudicing." While I won't go into a dissertation about the definition of these words, each one has a specific meaning that must be applied to the statment, and must be done so from a prospective (not retrospective) view.

Also contained in the rule is a large section dealing with public statements that can always be made, even if the statements might have a substantial likelihood of materially prejudicing an adjudicative proceeding, including, but not limited to: 1) the general nature of a claim, 2) information contained in a public record, 3) that an investigation is in process, etc.; however, the exception most applicable to the Kentucky Kingdom case would be #6, "A warning of danger concerning the behavior of a person (or corporation), when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest..."

Here, the statements made by this young girl to the press, and in Washington D.C. at congressional hearings on amusement park safety have been "a warning of danger...of likelihood of subtantial harm to an individual or to the public interest."

Finally, because there hasn't been a trial date set, it would be difficult to argue there has been any likelihood of materially prejudicing the trial. Just my two cents.

Hans

Automobile and Semi-Truck Accidents Are a Serious Problem in Kentucky

hans@poppelawfirm.com (Blog Author)2861 — Sat, 31 May 2008 08:00:00 EST

So, I was talking with a non-lawyer friend of mine the other day and he was telling me how lucky we are to live in Louisville--because "we don't have that many car accidents. "
WHAT!!??
While I certainly agree we are lucky to live in Louisville, it certainly has nothing to do with the number of car wrecks. In fact, Kentucky as a whole has statistically more injuries and fatalities involving semi-trucks than other states, probably because of the convergence of I-264 (Watterson Expressway), I-65 (Martin Luther King Highway) and I-64 and I-71, all in Louisville-- this is commonly known around here as Spaghetti Junction.
If you are ever involved in an automobile accident, you should do the following:

If someone is injured, you should call for help immediately. Provide basic first aid but don't move an injured person unless you have medical training.
Make note of the time of day, any weather factors that may have contributed to the accident, the position of the cars, etc.
Courteously exchange information with the other parties involved such as names, addresses, phone numbers, driver's license numbers, insurance companies and policy numbers, if possible.
If there were witnesses to the accident, get their names and telephone numbers. If the police are called, make a note of the reporting officer's name.
Report the accident to your insurance agent or company as soon as possible, even if you were not at fault.
And, if you were injured, and the accident was not your fault, hire a lawyer.

Download our Free Report on Semi-Wrecks.
Hans

Six Flags Accident Was Preventable

hans@poppelawfirm.com (Blog Author)2853 — Sat, 31 May 2008 08:00:00 EST

According to today's Courier-Journal, the tragic accident the severed Kaitlyn Lasitter's legs last summer was preventable. The article specifically references the recently released report conducted by the Commonwealth of Kentucky's Agricultural Department (which is responsible for inspecting rides) indicates that the two main factors in the accident were 1) cable wear and 2) operator failing to use the emergency stop button soon enough.
The department's spokesperson indicates that there is no way to know how long the cable had been under stress, but did say, ""Early on, the deterioration is slow, but as (the cable) gets closer to failure, it gets a whole lot worse," he said. "It was obvious that whatever had been happening (on the broken cable) had been happening for a while."
The report was also critical of Kentucky Kingdom (a.k.a Six Flags) for failing to follow the manufacture's instructions for inspecting the cable.
New legislation in Kentucky passed this year changes the minimum age for a ride operator to 18 and mandates the amusement park provide updated manuals to the state to ensure compliance.
Hans

Poppe Law Firm Involved in $900,000 Louisville FELA Verdict Against CSX Railroad

hans@poppelawfirm.com (Blog Author)2786 — Fri, 23 May 2008 08:00:00 EST

Sorry to be so long in posting, but we were in trial with Hal Bailey of Atlanta Georgia and Will Moody, Jr. of Virginia, both of Moody, Strople, Kloeppel & Higginbotham, Inc. A Louisville jury awarded our client, Paul Fairchild, $910,000 in a Federal Employers Liability Act (FELA) case against CSXT Railroad.

In 2003, Paul was operating a ballast regulator when his supervisor stopped a fuel truck across the tracks at the crossing Paul was approaching. While Paul tried to stop the regulator as quickly as he could, there was too much grease on the rail and Paul and his regulator slid 250 feet into the fuel truck.

The wreck caused Paul to suffer a severe neck injury that resulted in a two level neck fusion and a permanent impairment that has disabled him.

This Louisville, Kentucky jury took their charge seriously and deliberated almost 8 hours before coming to their verdict. We believe it is a verdict they should be proud of.

Hans

Law Firm Sued 22 Times Sues its Own Malpractice Carrier for Not Defending New Legal Malpractice Suit

hans@poppelawfirm.com (Blog Author)2656 — Sat, 10 May 2008 08:00:00 EST

One of Augusta's best known criminal defense firms has a problem. It seems they have been sued--23 times. Their insurance carrier has settled all of them-- but one. The one suit they refuse to settle, or even pay for the defense, was filed by Wendell A. Jenifer.

So, not only is the Fleming firm having to pay the costs of defending themselves in the Jenifer case, they have also sued their insurance carrier, Clarendon National Insurance Co,

Jenifer sued the Fleming firm, John Fleming and his nephew William Fleming in 2006. Mr. Jenifer hired the firm and the attorneys to represent him in a personal injury case against a local hotel, and he alleges his case was thrown out because the attorneys did nothing to pursue it.

Mr. Jenifer's malpractice case was scheduled for trial last month in U.S. District Court. It was put on hold to give the Fleming firm and the attorneys time to get a legal ruling about their insurance coverage during the time Mr. Jenifer claims he was neglected.

According to the Fleming firm's lawsuit, Clarendon provided its malpractice insurance until it canceled the policy in August 2002.

The firm then obtained coverage through Royal Surplus. Neither insurance company has provided any defense for the firm or attorneys in the Jenifer case. According to court documents filed in federal court, Clarendon dropped the Fleming firm and attorneys after it had to settle 22 malpractice claims in the fall of 2002. In order to obtain new insurance, John Fleming and William Fleming had to resign from the firm, although John Fleming returned a month later.

In the Jenifer case, the judge has made a very unusual evidentiary ruling. U.S. District Magistrate Judge W. Leon Barfield framed what a federal court jury will hear as follows "I have come to the conclusion ... that much of the insurance evidence proffered by the plaintiffs in this case is admissible," Judge Barfield said.

Judge Barfield ruled that all of the claims filed within the time period that Mr. Jenifer had dealings with the firm and William Fleming can be used as evidence.

Judge Barfield said it is plausible that the Fleming firm found itself in "a firestorm" in 2002. The insurance company canceled the firm's policy, and it was re-instated only when John and William Fleming resigned. John Fleming returned a month later.

It is plausible, Judge Barfield said, that the firm's attorneys realized that any claim Mr. Jenifer might file would not be covered by the insurance. The evidence about the other insurance claims is relevant because the firm admitted to wrongdoing until it came to Mr. Jenifer's case, the judge said.

In another unusual evidentiary ruling, Judge Barfield ruled the Fleming firm cannot call other attorneys as witnesses to give opinions about the merits of Mr. Jenifer's case against the hotel. That will be a decision the jury must make in determining whether there was legal malpractice, Judge Barfield said.

FYI, this is not the first time the Fleming firm has been under fire. A couple of years ago, they were accused of "client dumping."

Hans

Louisville Lawyer Suspended from Practice and Criminally Charged For Allegedly Stealing

hans@poppelawfirm.com (Blog Author)2619 — Wed, 07 May 2008 08:00:00 EST

As reported today in the Courier Journal, Louisville attorney Louis Smith has been accused of stealing money from his clients. Prosecutors allege that Smith, an estate attorney, began stealing from clients, including Emily Strange, around 1999.

Although Smith pleaded "non-guilty" to the charges, his criminal lawyer Steve Romines has filed court papers indicated they may defend Smith by asserting his diagnosis of dementia.

On March 20, the Kentucky Supreme Court temporarily suspended Smith from the practice of law for his dealings with Ms. Strange's $1 million estate and stated, "In less than ten years, all of the money seems to have disappeared , and the client is on Medicaid. Even when the circuit court ordered an accounting by the Respondent, he refused to disclose the whereabouts of the assets and the purpose of their transfer. The circuit court has threatened sanctions, including incarceration on the contempt, until such disclosures are made. We have no doubt that the circuit court has quite a task in seeking to trace the assets from the Respondent."

It has been my experience that lawyers that steal money from clients don't usually have any insurance or assets. This necessarily means that it will be very difficult for any of his victims to recovery in a legal malpractice lawsuit; however, that doesn't mean his victims should sit idly by, they should hire an attorney to investigate if insurance is available and what, if any, assets are available to reimburse the clients and their estates.

hans

Another new development in the fen-phen case

hans@poppelawfirm.com (Blog Author)2545 — Wed, 30 Apr 2008 08:00:00 EST

Another new development in the fen-phen case. We've written about most of the major ones throughout the blog, some of which can be found here:

According to today's Courier-Journal, a federal judge yesterday refused to disqualify himself from trying the lawyers accused of fraud in Kentucky's fen-phen diet drug case, accusing their attorneys of "serious ethical violations" for falsely accusing him of misconduct.

According to the Courier, U.S. District Judge William O. Bertelsman is "Threatening to seek disciplinary action [against the lawyers], [Bertelsman] said some of the allegations made by the defendants' lawyers in affidavits were "substantially based on outright misrepresentations of the record" and that the Supreme Court has suggested that "disbarment may be appropriate for lawyers who certify false ... affidavits."

Hans

Kentuckians for Nursing Home Reform Petition for Better Care

hans@poppelawfirm.com (Blog Author)2402 — Wed, 16 Apr 2008 08:00:00 EST

Our friends over at Kentuckians for Nursing Home Reform need our help. They are collecting signatures for a petition to establish minimum staffing in nursing homes. We agree that far too many patient care issues are directly related to the lack of adequate staffing in nursing homes. We support any attempts to get the Kentucky legislature to recognize this and implement mimimum staffing standards. We believe a high percentage of nursing home abuse and neglect cases would never occur if homes had adequate staffing.
Please follow the below instructions and get as many signatures as possible:

IT'S TIME TO GO TO WORK.

JOIN THE PETITION DRIVE FOR SAFE STAFFING STANDARDS IN NURSING HOMES.

HERE'S WHAT TO DO:

1. Go to the attachment with this e-mail. This is the petition.

2. Print it out.

3. Now, take it everywhere you can, explaining how important it is to have minimum staffing standards in nursing homes.

4. Get everybody to sign it and clearly print their e-mail addresses.

5. Send the petition to: Kentuckians For Nursing Home Reform, 1530 Nicholasville Road, Lexington, KY 40503

START NOW.
DOWNLOAD THE PETITION (MS WORD).
OPEN IT UP AND PRINT IT.
GOOD LUCK.
AND THANKS!

Minnesota Lawyer Forced to Defend Himself In Kentucky in Legal Malpractice Claim

hans@poppelawfirm.com (Blog Author)2398 — Wed, 16 Apr 2008 08:00:00 EST

One question I am often asked in legal malpractice cases is "can a lawyer be sued for legal malpractice in a state where he does not live or work if he took a case there?" This question is really asking, does the state where the legal work was done, supposed to be done, have jurisdiction over a non-resident lawyer that may not be licensed in the state and may have never even visited the state.
Well, a federal court in the Western District of Kentucky has i ssued an opinion answering the question. A Minnesota lawyer was hired by an Indiana resident to investigate and pursue a wrongful death claim in Kentucky. The lawyer sent contracts and medical authorizations to the estate's representative; however, according to the complaint, the lawyer failed to do any work on the case after receiving the signed documents back from the client. Ultimately, the statute of limitaions expired and the client sued the lawyer in Kentucky.
The lawyer argued that a Kentucky court did not have jurisdiction over him because he lived in a different state. The federal court analyzed the situation and ultimately determined that the lawyer had consented to jurisdiction by his actions and that the facts of the underlying medical malpractice case had such a strong connection to Kentucky that jurisdiction was proper.

hp

Local News Paper Columnist Writes on the Importance of Jury Duty

hans@poppelawfirm.com (Blog Author)2359 — Fri, 11 Apr 2008 08:00:00 EST

Living and practicing law in Louisville, Kentucky probably isn't a lot different than practicing law in a lot of other states. And, trial lawyers here and elsewhere are always concerned about the animosity and resentment people display when called on to do their civic duty by serving on a jury.
A while back I wrote about what a misnomer the term "jury selection" is. Lawyers don't get to select a single person to be on the jury, much less select the entire jury. That is why lawyers are so concerned that well educated and thoughtful people don't try to get out of jury service. We need a broad cross section of society to ensure fair trials. When people shirk their responsibility, we are left with something less than a cross-section.
Recently, Ms. Betty Baye wrote about here experience on a jury here in Jefferson County, Kentucky and she laments what trial lawyers have known for years. People should be more engaged in the process and thankful for the opportunity to play a party in the judicial system. After all, whether its a car wreck or a DUI charge, one day you may be the one hoping someone thoughtful and involved will be on your jury. Here is Ms. Baye's article:

"I could have come up with plenty of good reasons to finagle my way out of jury duty, but claiming I couldn't be spared at work wasn't an option, my supervisor made patently clear.

Plus, several friends implied that they wouldn't speak to me again if I didn't serve.

So I did, but I must admit that I've done my share of complaining that the criminal justice system isn't fair and yet may find occasion to do so again. And I know on good authority that many African Americans, regardless of station, are leery of "the system" simply because far too often, it seems less about justice than "just us." Yet, that's even more reason to jump into the jury pool; it's the hope of making it, if not all fair, at least more fair.

Frankly, if a day ever comes when I'm the criminal defendant or a party in a civil suit, I hope that there will be jurors who will give me a fair hearing.

Meanwhile, a word of thanks to the Jefferson County jury pool administrators and the sheriffs, who, knowing full well that some of us were disgruntled about being there, nevertheless, were respectful of us and the service we were being asked to render for the princely sum of $5 a day.

No, that's not a typographical error.

But the paltry pay (no doubt an impediment to some who might otherwise serve) in no way diminishes the gravity of the juror's task.

And, yes, since most cases are settled, jurors may spend hours of the usual two-week commitment waiting to be called, or being made to sit through a tedious voir dire (that's French for "speak the truth") only to be dismissed and thrown back into the jury pool.

My jury pool was more than 300 strong, and it was interesting how people, from the length and breath of this community, and who might not ever otherwise cross paths, quickly bond as if they've known one another for years.

There's a rare egalitarianism in a jury pool. Those who have the longest titles and are the highest paid professionals, in their other lives, carry no more weight than the least educated and lowest paid laborers in the jury pool. On a jury, what everybody thinks matters, and any juror can slow or stop the process if they feel unready to agree with the majority.

When I finally did get to sit on a jury, a baby-faced lawyer made a yeoman's effort to sell a far-fetched explanation for his client's speeding and DUI charges. His client was found guilty, but that lawyer raised sufficient doubts to keep the defendant from being jailed. And behind the scenes, armed with the judge's instructions, six jurors labored over our verdict as if we'd be asked to decide a death penalty case.

If you need reason to take jury duty seriously, think about the fact that today, in the "land of the free," more than 2.3 million people were incarcerated at the start of this year, according to a Pew Center study. That's 800,000 more than in China, which has four times our population.

Or sitting in the jury pool, one might wish to contemplate that, collectively, states spent more than $49 billion to fund their corrections systems last year.

One might even be more humbled by the awesome task of judging others after learning that, just since 1989, 215 people (131 African Americans, 59 Caucasians, 19 Latinos, one Asian-American and five of unknown race) were exonerated in 32 states thanks to DNA testing not available years ago. Of the 215, fully 16 had served time on death row.

My point in writing this column is simply to say that when your "invitation" to jury duty arrives in the mail, try thinking of your service in a larger context than simply as a disruption to your daily routines.

Think of jury duty as a debt one owes in a society that aspires to be free, but never will be, if too many citizens decide that they can't be bothered with the work of being their sisters' and brothers' keepers."

Betty Winston Bayé's column appears Thursdays; her e-mail address is bbaye@courier-journal.com.

Chesley Refuses to Testify for Co-Counsel in Fen-Phen Trial

hans@poppelawfirm.com (Blog Author)2335 — Tue, 08 Apr 2008 08:00:00 EST

According to the Courier Journal, in a suprising turn of events, Cincinnati lawyer Stan Chesley has indicated he will not testify as an expert for his former co-counsel, William Gallion, Shirley Cunningham and Melbourne Mills in their criminal Fen-Phen trial. Those familiar with this blog know that we have been following the criminal trial as well as the legal malpractice trial. Chesley, a nationally known class-action plaintiff's attorney is the only one of the four lawyers involved in the Kentucky Fen-Phen settlement to not be indicted on criminal charges. Chesley's refusal to serve as an expert will make it difficult for Gallion, Cunningham and Mills to claim they relied on Chesley's advice in how they divided the settlement; although they have now indictated attorney Richard L. Robbins of Atlanta will now serve as their expert (Stay posted to see if Judge Bertelsman allows this since they disclosed Robbins after the deadline).
In another interesting twist, Gallion and Cunningham have asked that the judge ban the prosecution from telling the jury that they are part owners of Curlin, the 2007 Preakness winner.
Hans Poppe

Hans Featured in Louisville Magazine's Top Louisville Lawyers Edition

hans@poppelawfirm.com (Blog Author)2182 — Sat, 22 Mar 2008 08:00:00 EST

Louisville Magazine's Top Lawyer's edition is on the newstands and yours truly was one of six lawyers profiled. The magazine profiled a public defender, a large defense firm lawyer, a medium-sized law firm lawyer, an in-house general counsel, the new assistant attorney general of Kentucky (my friend Tad Thomas), and I was the solo practioner.
I was very flattered to be included and thought the interview went well. You can take a look at the article on me by clicking here. You can read the other profiles by going to Louisville Magazine's website
HansPoppe

Famed Trial Lawyer Dickie Scruggs Pleads Guilty to Bribing a Judge

hans@poppelawfirm.com (Blog Author)2124 — Sun, 16 Mar 2008 08:00:00 EST

Famed trial lawyer Richard "Dickie" Scruggs has pleaded guilty to attempting to orchestrate a bribe of a judge. According to news articles Scruggs was attempting to obtain a favorable ruling in a fee dispute with some other lawyers arising out of bad faith insurance lawsuits against State Farm related to the Katrina diaster. The New York Times wrote an in depth article about the fee dispute issue when Scrugss was first indicted.

In his first significant case, Scruggs represented shipyard workers who had been exposed to asbestos. Scruggs earned millions from asbestos litigation. But it was his assault on Big Tobacco in the 1990s that made him famous. Scruggs orchestrated one of the largest civil settlements in American history, winning nearly $250 billion from the industry. The fees awarded to the plaintiffs' lawyers came to more than $13 billion. Scruggs' share of the pot was at the very least in the hundreds of millions.

There are cases that make lawyers' careers, but this was something more. It made Scruggs a star in the legal world and a character in "The Insider," a 1999 movie about the tobacco litigation.

The Mississippi bar association has indicated it will immediately suspend Scrugs' license to practice law. And, while he has yet to be sentenced, prison is certainly a possibility.

This is certainly a disturbing development and, once again, paints a picture of personal injury lawyers as nothing more than money chasing scoundrels.

This event does nothing to change what I know to be true: most lawyers are hard working, honest people that take seriously their oath to place their client's interests ahead of their own.

Hans Poppe

Is Improving Nursing Home Care a Religious Obligation?

hans@poppelawfirm.com (Blog Author)2113 — Thu, 13 Mar 2008 08:00:00 EST

This editorial recently appeared in the Lexington Herald Leader questioning whether improving the nursing home care in Kentucky for our elderly is a religious obligation. I thought it was timely and interesting, so I am posting the entire article here.

Nursing home reform a faith issue

Esther Hurlburt

People of faith have recently chimed in on a variety of legislative issues. Some religious folks have protested mountaintop removal, others have rallied against casino gambling and still others have demonstrated their support for or opposition to pre-abortion ultrasounds.

Unfortunately, people of faith have yet to add their voices to a critically important issue that calls for justice and compassion. It's time that religious people of all faiths insist on justice and compassion for the 23,000 people living in Kentucky nursing homes.

Throughout the ages we have learned in churches, mosques and synagogues two very simple lessons: We must honor our elders, and we must do unto others as we would have done to ourselves. If our theology is to be of any use at all then it must be put into practice.

Creating a culture of care means we ensure that old people will not live in despair and fear that their needs will not be met if they are forced into institutional care.

Creating a culture of care means we honor our elders by standing in solidarity with them so they do not suffer any more than we ourselves would want to suffer.

Creating a culture of care ensures that the needs of the frail elderly are no longer subordinate to corporate greed that places profit over compassion.

Creating a culture of care based on justice and compassion for our frail elderly comes in the form of nursing home reform.

Nursing home reform, as an act of justice and compassion, can be preached from every pulpit, supported by every social justice group and taught in every religious education class. Elders, whom we have been taught to honor and whom we have been taught to treat with the same love and respect that we desire for ourselves, depend on us to speak for them when they can no longer speak for themselves.

People of faith can add their voices to support four pieces of legislation that promote nursing home reform. Please consider that:

* Justice and compassion should be delivered every day by well-trained caregivers rather than rationed by corporate policy. House Bill 109 would set minimum staffing to provide comprehensive, safe and timely care to every resident every day.

* Acts of injustice and neglect should not be hidden nor kept secret. House Bill 222 would allow consumers, especially family members, to be immediately, easily and accurately informed about nursing homes that violate the appropriate standards of care.

* People in charge should be held accountable for acts of injustice and neglect and should answer to such charges. House Bill 589 would require the Cabinet for Health and Family Services' Web site to detail who owns each nursing home and where they can be contacted. Further, House Bill 108 sets stiff penalties for nursing homes if problems are found to be caused by inadequate staffing.

If we are serious about putting what we have been learning in our faith communities into action, caring for our elders is a religious obligation.

--------------------------------------------------------------------------------

Lawyer Fined $29k for His Client's Profanity During Deposition

hans@poppelawfirm.com (Blog Author)2090 — Sun, 09 Mar 2008 08:00:00 EST

Well, it doesn't rise to the level of legal malpractice, and it didn't happen in Louisville but it is very interesting. Law.com is reporting that attorney Joseph R. Ziccardi has been sanctioned $29,000 by U.S. District Judge Eduardo C. Robreno for his client's foul language during a deposition.

Every litigation attorney has, at one time or another, been in a deposition where his client said something unexpected. Most of the time its no big deal, but here Judge Robreno decided that Aaron Wider, the CEO of HTFC, engaged in "hostile, uncivil, and vulgar conduct, which persisted throughout the nearly 12 hours of deposition testimony."

Robreno noted that Wider used the "F word" or variations of it 73 times during the deposition and that the video shows that Ziccardi at one point "snickered" at his client's conduct.

Unfortunately, I don't have any video of that deposition. But for a classic deposition taken Texas style click here to see two attorneys practically come to blows.

Hans Poppe

Hans Invited to Lecture on Insurance Bad Faith.

hans@poppelawfirm.com (Blog Author)2025 — Fri, 29 Feb 2008 08:00:00 EST

I have been invited by the National Business Institute to lecture on "Bad Faith Insurance Claims in Kentucky." Specifcally, I will be focusing on the following topics: Indentifying the type of Tort, Related Causes of Action and Damages and Gaining a New Perspective on Pre-Trial Practice. I will be joined by J. Michael Hearon, who will be discussing Emerging issues and current laws; Lee Sitlinger, who will discuss Gathering Information Critical to the Case and Successful Courtroom Strategies; and Nancy Loucks, who will be discussing Ethical Consequences and Avoiding Bad Faith Claims for the Insurance Professional. You can see the seminar outline here:
Hans

Hans Invited to Give Legal Malpractice Seminar in Louisville in March

hans@poppelawfirm.com (Blog Author)1996 — Thu, 28 Feb 2008 08:00:00 EST

The Kentucky Justice Association is holding a legal malpractice seminar with some great speakers, including Edward Stopher of Boehl Stopher Graves, Lee Sitlinger of Sitlinger, McGlincy and Theiler, Gary Weiss and Allan Cobb, as well as your truly. You can download the brouchure here.
Hans Poppe

Think You're Safe In Your Hummer? Think Again...

hans@poppelawfirm.com (Blog Author)1978 — Tue, 26 Feb 2008 08:00:00 EST

If you are ever involved in a car wreck or semi-truck accident you probably think you want to be in the biggest, heaviest automobile or suv; however, you may be surprised to know that one of the vehicles everyone thinks is safe, isn't. As a lawyer that represents people who were hurt or killed in car or truck wrecks, there aren't many things on which I can agree with the Insurance Institute for Highway Safety, but even I pay attention when they do their annual surveys on the safest vehicles.

According to the report released by the Insurance Institute for Highway Safety, the safest mid-size SUV was the 2009 Nissan Murano. What might surprise most is that the Hummer H3 had one of the poorest showings. The General Motors' H3 was the only vehicle in the group that did not receive the top rating for frontal crash protection and, even more disturbing, it received the lowest rating, "poor", in the rear crash test. Of important note, the H3 and the Chrysler Jeep Liberty and Dodge Nitro are all three built on the same platform.

So, just because its big doesn't mean its safe. Do your research by reading the full 5-page report here and drive safely.

Here are the Institutes "safest" vehicles:

Top Safety Pick 2008 award winners

Large cars

Audi A6

Cadillac CTS

Ford Taurus with optional electronic stability control

Mercury Sable with optional electronic stability control

Volvo S80

Midsize cars

Audi A3

Audi A4

Honda Accord 4-door models

Saab 9-3

Subaru Legacy with optional electronic stability control

Midsize convertibles

Saab 9-3

Volvo C70

Small car

Subaru Impreza with optional electronic stability control

Minivans

Honda Odyssey

Hyundai Entourage

Kia Sedona

Midsize SUVs

Hyundai Veracruz built after August 2007

Saturn VUE built after December 2007

Subaru Tribeca

Toyota Highlander

Volvo XC90

Small SUVs

Honda CR-V

Honda Element

Subaru Forester with optional electronic stability control

Large pickup

Toyota Tundra

Hans Poppe

California Judge Awards $9 Million In Bad Faith Case

hans@poppelawfirm.com (Blog Author)1951 — Sat, 23 Feb 2008 08:00:00 EST

A california judge has awarded over $9 million in damages to a California women. Patsy Bates said she had undergone surgery to remove a tumor and had received her first two chemotherapy treatments when doctors stopped treating her because her bills were going unpaid. Health Net Inc must now pay the $120,000 in unpaid medical bills, $750,000 in emotional distress, and over $8 million in punitive damages. The case was arbitrated by Sam Cianchetti and Ms. Bates was represented by California bad faith attorney William Shernoff.

Kentucky is lucky in that we have strong bad faith laws to help protect consumers from unfair insurance practices, including unfair claims denial. However, many times Kentucky's bad faith laws provide no protection becuase most health insurance polices these days are ERISA policies, meaning they are governed by federal law. If an ERISA insurance company denies a claim they generally are immune from bad faith lawsuits. Unfair, but reality.

Hans Poppe

Michigan Accounting Firm Sued in Alleged Ponzi Scheme

hans@poppelawfirm.com (Blog Author)1940 — Thu, 21 Feb 2008 08:00:00 EST

You can read about the accounting malpractice lawsuit filed against Doeren Mayhew as well as see a copy of the Complaint by going here:
The complaint arises out of an alleged ponzi scheme by former Michigan attorney Ed May. Doeren was listed on several documents as being the accounting firm involved in the numerous companies set up by May. Thousands of investors have lost millions of dollars.
Hans

Congress May Help Nursing Home Residents That Have Signed Arbitration Agreements

hans@poppelawfirm.com (Blog Author)1853 — Tue, 12 Feb 2008 08:00:00 EST

Dan Frith posted today that Congress may finally help consumers avoid unfair arbitration clauses that are inserted into contracts before there is any dispute between them. An arbitration agreement gives up your right to to sue or have a jury hear your case. I see these arbitration clauses way too much in nursing home admission agreements. People simply don't understand what they are giving up when they sign these--and certainly aren't thinking about litigating a nursing home negligence claim when they are signing their loved one in to a home. Some of these agreements require the loser to pay for the other sides expenses in bringing the arbitration claim. PLEASE DON'T SIGN ONE!!!!!!!!!!!

They are completely unfair and should be done away with. I join Dan in saying "Please write your representative in Congress and ask them to support the Arbitration Fairness Act (H.R. 3010 and S. 1782). Let's win one for the American Consumer!"

Hans Poppe

Arbitration Clauses in Nursing Home Admission Agreements

hans@poppelawfirm.com (Blog Author)1852 — Tue, 12 Feb 2008 08:00:00 EST

Dan Frith posted today that Congress may finally help consumers avoid unfair arbitration clauses that are inserted into contracts before there is any dispute between them. An arbitration agreement gives up your right to to sue or have a jury hear your case. I see these arbitration clauses way too much in nursing home admission agreements. People simply don't understand what they are giving up when they sign these--and certainly aren't thinking about litigating a nursing home negligence claim when they are signing their loved one in to a home. Some of these agreements require the loser to pay for the other sides expenses in bringing the arbitration claim. They are completely unfair and should be done away with. I join Dan in saying "Please write your representative in Congress and ask them to support the Arbitration Fairness Act (H.R. 3010 and S. 1782). Let's win one for the American Consumer!"

Hans Poppe

Medicare to Release Names of More Underperforming Nursing Homes

hans@poppelawfirm.com (Blog Author)1851 — Tue, 12 Feb 2008 08:00:00 EST

As a result of an outcry from local and state legislators and private citizens, CMS (the Center for Medicare Services) will release the names of more underperforming nursing homes.

BULLETIN: CMS to name more underperforming facilities*

February 12 2008

Reversing an earlier position, the Centers for Medicare & Medicaid Services will release the names of additional nursing facilities the government has identified as poor performers.

Federal officials said they will address the issue during a media briefing called for 3 p.m. (Eastern) today.

Controversy erupted shortly after CMS posted the names of only the 54 "worst" facilities on its Special Focus Facilities to its Web site in late November. The remaining 74 facilities on the list were released only to provider associations, and, in part, to various state health departments — only some of whom made their in-state names public.

McKnight's sources have indicated that the list has expanded beyond the 128 facilities originally selected. The Special Focus Facilities list includes those that have consistently performed the worst in inspections. While the list has existed for many years, the government first began publicly releasing some names on it late last year.

Acting CMS Administrator Kerry Weems, who has said he would have handled the release of the names differently, and Sen. Herb Kohl (D-WI), chairman of the Special Committee on Aging, will speak at this afternoon's briefing, officials indicated.

"Providing the public the names of underperforming nursing homes across the country builds upon the historic release by CMS of poorly performing nursing homes in November of 2007," a statement released by CMS said this morning.

Provider advocates have defended receiving the list, and not naming all facilities on it. They say such actions can help them police their own, and also avoid spotlighting facilities that might have either just landed on the list or improved enough to be heading off it soon.

Florida Kicks Allstate Insurance Out of the State

hans@poppelawfirm.com (Blog Author)1691 — Sat, 19 Jan 2008 08:00:00 EST

According to the Lexington Herald Leader, Florida has had enough of the way Allstate treats its insureds. According to the article, "A day after telling Allstate Corp. to stop writing new car insurance policies in Florida, state regulators told the company to stop writing any new business in the state, including home insurance. Insurance Commissioner Kevin McCarty had initially planned to clamp down on just the company's auto business and its four companies doing business in Florida for its failure to fully comply with a state subpoena. But McCarty expanded the suspension Thursday to include Allstate's 10 companies nationally and all of its insurance lines."
Florida regulators want to know why Allstate refuses to comply with the new legislation that requires all Florida insurers to lower premiums. Instead, Allstate has requested permission to raise premiums.
Among the subpoenad documents are the famous McKinsey Powerpoint slides that allegedly details Allstate's cost cutting strategy by denying claims.
Readers of this blog will recall the McKinsey documents and Allstate's "Delay, Deny, Defend" strategy was the subject of an unsuccessful trial in Lexington, Kentucky a few months ago when the jury returned a verdict in favor of Allstate in a lawsuit filed by Geneva Hager of Richmond, Ky., over a car wreck. Hager had sought more than $1 billion. Hager, and her attorney Dale Golden alleged that Allstate's procedures violate Kentucky insurance laws.
Hans Poppe

Insurance Company Caught Falsifying Documents in Order to Deny Benefits

hans@poppelawfirm.com (Blog Author)1649 — Fri, 11 Jan 2008 08:00:00 EST

According to the Sun Herald-Leader, Texas Mutual Insurance Company was caught falsifying medical records so it could deny an injured worker his benefits. Judge Martin Hoffman found that Texas Mutual committed fraud by falsifying a medical record in pending litigation in which the insurance company tried to overturn an order from the State of Texas to pay for a workplace injury. The judge ruled that Texas Mutual's fraudulent manipulation of the medical record was committed "knowingly and intentionally" to "gain an advantage in this suit."
Judge Martin ordered the insurance company to pay $30,000 as a sanction and post the court's order to its website. I looked for the order but did not see it.
Texas Mutual has been a strong proponent of changing the laws to cap damages and to shield insurance companies from bad faith litigation.
Juan Mr. Narvaez is represented by Mike Doyle, Jeff Raizner, and Quentin Haag, of Doyle Raizner LLP in Houston, and Peter N. Rogers, of Rogers, Booker & Lewis in Richardson, Texas.
Fortunately, Kentucky has laws that help hold insurance companies accountable when they wrongfully deny benefits to Kentucky claimants. In Kentucky, an insurance company can be sued for "bad faith," and violations of the Kentucky Unfair Claims Settlement Practices Act.
Hans Poppe

Kentucky Federal Judge Dismisses Comair Crash Victim's Consoritum Claims

hans@poppelawfirm.com (Blog Author)1613 — Tue, 08 Jan 2008 08:00:00 EST

Judge Dismisses Comair Plane Crash Victim's Consortium Claims

As reported by the Lexington-Herald Leader, U.S. District Court Judge Karl Forrester has ruled that those who lost loved ones in the 2006 crash of a
Comair plane aren't entitled under Kentucky law to sue the airline for
loss of companionship.

Kentucky is among four states that don't allow jury awards for loss
of companionship by surviving spouses. There also is no state provision
for companionship damages for adult children or their parents, although
the state does allow children younger than 18 to sue for damages when a
parent is wrongfully killed.
You can read the order here.

Three Kentucky Nursing Homes Make Federal "Bad" List

hans@poppelawfirm.com (Blog Author)1569 — Sat, 29 Dec 2007 08:00:00 EST

Early this month, the federal government's Medicare program released the 54 worst nursing homes in the country. No nursing home in Kentucky made the list; however, the Lexington Herald leader is reporting that three Kentucky nursing homes were on the expanded list of "128 chronically troubled facilities ordered by the federal government to get closer scrutiny." "State records obtained by the Herald-Leader identify the Kentucky nursing homes as Cambridge Place in Lexington, Highlands Nursing and Rehabilitation Center in Louisville and Baptist Convalescent Center in Newport."
Our friend, Bernie Vonderheide, president of the watchdog group Kentuckians for Nursing Home Reform, had this to say: "We may have a loved one in these nursing homes, or we may be considering one of these nursing homes for a loved one, and we have a right to know if our government is aware of serious and chronic problems."
I agree with Bernie, there is no reason for the government to withhold the names of nursing homes that are neglecting patients by allowing them to get pressure sores and ulcers, becoming dehydrated or malnourished, or being subjected to chemical restraints such as Haldol for the convenience of the nursing staff. Nursing homes in Kentucky and elsewhere are critically understaffed. The public has a right to know the names of the nursing homes that are falling below the standard of care and harming our elderly loved ones. Nursing home neglect is a serious problem.
According to the government reports all the nursing homes on the list consistently provided poor patient care and were in and out of compliance with federal regulations.
For more information on how to choose and get good care at a nursing home, please download my Free Report-- Nursing Homes: What You Absolutely Positively Must Know Before Choosing One.
Hans

Surgeon Faces Medical Malpractice Hearing for Photographing Patient's ...What???

hans@poppelawfirm.com (Blog Author)1568 — Sat, 29 Dec 2007 08:00:00 EST

A Phoenix Arizona surgeon is in hot water for photographing a male patient's genitals during a surgery. The strip club owner had "hot rod" tatoo on his penis. While inserting the catheter, the surgeon decided to snap a photo to share with his pals. Ultimately, the picture snapping doc was outed to a local newspaper. You can read about it here .
Hans Poppe

Golden Nugget Under Investigation for Serving Alcohol to 20 Year Old that Caused Fatal Accident in Louisville

hans@poppelawfirm.com (Blog Author)1427 — Tue, 04 Dec 2007 08:00:00 EST

News reports indicate that Emily Hall claims she was served alcohol at the Golden Nugget bar before she caused a fatal accident in Louisville. That's a big problem because Ms. Hall is only 20 and should never have been served at the Golden Nugget.

When a bar serves a minor, or overserves any customer, that then leaves and causes an accident, the bar can be held responsible under dram shop liability. This means that the Golden Nugget Bar in Louisville may be held liable for the death of Abram Reimer, 53 of Ontario, and may be jointly responsible for paying money damages to the estate of Mr. Reimer.

Ms. Hall has a well known Louisville criminal defense lawyer, Steve Schoering, that has handled several high profile criminal matters.

Medicare Reveals 54 Worst Nursing Homes in the Country

hans@poppelawfirm.com (Blog Author)1419 — Sun, 02 Dec 2007 08:00:00 EST

Medicare has revealed the 54 worst nursing homes in the country. Suprsingly, none of them are in Kentucky; however, two of them are in Indiana. Kentucky is one of few states that does not have mandatory minimum staffing requirements, something Governor-elect Steve Bashear has promised to consider. Here is the complete list of nursing homes that the government ranks as teh worst:

Alabama
Eastview HealthCare Center, in Birmingham
Woodley Manor Health & Rehabilitation, Montgomery
Arkansas
Benson's Nursing Home Inc., Nashville
California
Yuba City Care Center, Yuba City
Colorado
Eagle Ridge at Grand Valley, Grand Junction
Kindred Healthcare & Rehab Center of Northglenn, Northglenn
Connecticut
Wethersfield Health Care Center, Wethersfield
Florida
Apollo Health & Rehab Center, St. Petersburg
Key West Convalescent Center, in Key West
Palms Rehabilitation and Nursing Center, Lauderdale Lakes
Georgia
Laurel Baye Healthcare of Lake Lanier, Buford
The Place at Augusta, Augusta
Shoreham at Marietta, Marietta
Hawaii
Leahi Hospital, Honolulu
Iowa
Blair House, Burlington
Idaho
Gooding Rehab & Living Center, Gooding
Illinois
Berkshire Nursing & Rehab Center, Forest Park
Indiana
Hillcrest Centre for Health and Rehabilitation, Jeffersonville
Valparaiso Care and Rehabilitation Center, Valparaiso
Kansas
Atchison Senior Village, Atchison
Ottawa Retirement Village, Ottawa
Louisiana
Lake Providence Subacute Rehab, Lake Providence
Plaquemine Caring LLC, Plaquemine
Massachusetts
Cedar Hill Health Care Center, Randolph
Milton Health Care, Milton
Minnesota
Golden Valley Rehabilitation and Care Center, Golden Valley
Mcintosh Manor, Mcintosh.
Missouri
Senior Estates, Kansas City
St Elizabeth Healthcare and Rehabilitation Center, Florissant
West Village Manor, Columbia
Mississippi
Hinds County Nursing & Rehabilitation Center, Jackson
Montana
Evergreen Missoula Health & Rehab, Missoula
North Carolina
Sunbridge Care & Rehab/Triad, in High Point
New Jersey
Victoria Health Care Center, Matawan
New Mexico
Fort Bayard Medical Center, Fort Bayard
Nevada
Evergreen Mountainview Health, Carson City
New York
Vivian Teal Howard Rhcf, Syracuse
Oklahoma
Northwest Nursing Center, Oklahoma City
Pawhuska Nursing Home, Pawhuska
Pennsylvania
Ashton Hall Nursing and Rehab, Philadelphia
Brighten at Broomall, Broomall
South Carolina
Magnolia Manor — Moncks Corner, Moncks Corner
Ridgeview Manor Nursing Facility, in Hopkins
South Dakota
Aberdeen Healthcare Center, in Aberdeen
Bennett County Hospital and Nursing Home, Martin
Tennessee
Overton Park Health Care Center, Memphis
Texas
Taylor Care Center, Taylor
Virginia
Ruxton Health of Woodbridge, Woodbridge
Washington
Evergreen Centralia Health & R, Centralia
Franklin Hills Health & Rehab, Spokane
Frontier Rehab & Extended Care, Longview
Wisconsin
Luther Home, Marinette
Willows Nursing and Rehabilitation, Sun Prairie
Washington, D.C.
Carolyn Boone Lewis Health Care Center

Senator McCain Speaks Out Against Victims of Medical Negligence

hans@poppelawfirm.com (Blog Author)1418 — Sun, 02 Dec 2007 08:00:00 EST

Well, it seems that Senator McCain doesn't want to see negligent doctors and hospitals held responsible when they injure or kill people. Speaking at the Surf and Golf Club in Myrtle Beach, McCain told a crowd of about 70 people that he was in favor of tort reform and would make it his second highest priority. McCain went on to say that the victims of medical malpractice should be forced to pay the entire costs of litigation if they lose at trial.
What the senator fails to realize is that their simply is not a litigation crisis, especially when it comes to medical malpractice. A medical negligence case will cost the victim's attorney anywhere between $50,000 to 200,000 to get to trial. Lawyers can't afford to file frivolous lawsuits against doctors because they are too expensive. Plain and simple.
Loser pays isn't fair to the victims. It's hard enought to find an attorney to handle a medical negligence case, but implementing a "loser pays" system would make it nearly impossible. I have seen several cases proceed to trial where there was negligence, but the doctor still won the case. It happens a lot. Juries are very critical of medical malpractice cases and, as a result, they often find in favor of the doctors--regardless of whether their truly was malpractice.
What's even more troubling is that McCain doesn't explain how his system would lower insurance rates for doctors. Without some type of accountability from medical malpractice insurance companies, they will never lower rates. This has been the case in most states that have instituted tort reform Insurance premiums have remained high, even though the number of cases filed has dropped. In fact, the largest medical malpractice insurers have profits double that of the average Fortune 500 Company
If McCain really wants to lower the insurance rates for doctors, they should start regulating insurance companies that provide the coverage. Currently, they can charge whatever they want--and they do. They simply blame it on frivolous lawsuits and lawyers. Evidently McCain has been drinking the insurance lobby's Kool-Aid for too long. Instead, he should read the May 11 issue of The New England Journal of Medicine's study finding that almost every medical malpractice lawsuit has merit and that caps will not reduce doctor's premiums
McCain should also go back and read the Congressional Budget Office's Report which found that medical malpractice litigation accounted for less than 2% of total health care costs. Shame on you Senator McCain. To read more about medical malpractice myths, click here.
Hans Poppe

Louisville Woman Charged With Murder in DUI Car Wreck.

hans@poppelawfirm.com (Blog Author)1417 — Sun, 02 Dec 2007 08:00:00 EST

Accourding to the Courier Journal, Emily A. Hall, a 20 year old Louisville, Kentucky woman was charged with murder and drunken driving Thursday after causing a fatal car wreck on the Watterson Expressway
According to the Louisville Metro Police Department, "Hall was driving a car while under the influence when she swerved into the path of a tractor-trailer on the interstate near Taylorsville Road just before 2 a.m. Thursday." "The two vehicles collided and the truck hit a pole holding an interstate sign, splitting the truck in half, police said." "Abram Reimer, 53, of Ontario, was in the sleeping compartment of the tractor-trailer and was killed when he was thrown from the truck"
What is most is disturbing is that, according to court records, this is the second time Hall has been charged with driving under the influence this year. I have looked at her other records and she has also had multiple speeding tickets in addition to the DUI charges.
Typically, punitive damages aren't available in most car wreck; however, here, punitive damages can be awarded for Hall's conduct because she was driving drunk. Because this is not her first arrest, the prior DUI arrest will likely be admissible as well, what is less clear is whether her three speeding tickets come in as well.
Punitive damages are meant to punish the wrongdoer, as opposed to compensatory damages, such as mental and physical emotional distress and past and future lost wages, which are meant to reimburse the Estate for its loss. Unfortunately, most automobile insurance polices do NOT cover punitve damages, so if a jury awards them, the family will have to try to recover them from Ms. Hall. That may not be possible since she is only 20 and likely doesn't have any significant assests. This may mean that the family is limited to recovery what ever insurance Ms. Hall has and nothing more. In Kentucky, most people only carry the minimum legally required amount of $25,000. That amount can hardly be called "compensation."

Hans Poppe

Watch the WHAS 11 News Interview with Hans about Medical Malpractice and Plastic Sugery

hans@poppelawfirm.com (Blog Author)1391 — Wed, 28 Nov 2007 08:00:00 EST

See the WHAS 11 News interview with me about one of my plastic surgery medical malpractice cases by clicking here.

WHAS Interviews Hans About Medical Malpractice and Plastic Surgery

hans@poppelawfirm.com (Blog Author)1378 — Sun, 25 Nov 2007 08:00:00 EST

Be sure to watch WHAS 11 News at 11:00 p.m., on Tuesday, November 27th when Kirby Adams interviews Hans about medical malpractice and plastic surgery. We'll post a link following the interview.

Can Holiday Hosts Be Sued if Their Guests Leave Drunk and Cause a Wreck?

hans@poppelawfirm.com (Blog Author)1353 — Tue, 20 Nov 2007 08:00:00 EST

Many holiday hosts will be serving alcohol at their parties. This leads to the question of whether they can be held responsible for an accident caused by their guest after leaving the party. This is known as "social host liability." The laws regarding social host liability vary from state to state. Several states have laws holding a host responsible if they "over serve" alcohol to one of their guests and the guest causes an accident that hurts or kills someone.

Kentucky is one of 18 states that does not impose social host liability. In Kentucky,

The General Assembly finds and declares that the consumption of intoxicating beverages, rather than the serving, furnishing, or sale of such beverages, is the proximate cause of any injury, including death and property damage, inflicted by an intoxicated person upon himself or another person.

KRS 413.241

The only way to completely ensure you won't be sued is if you choose not to serve alcohol; however, assuming you are not the employer of your guest, and assuming you are only serving adults, Kentucky law does not hold a host responsible for the negligence of a guest.

Regardless of the law, if you choose to serve alcohol at your holiday party, be a responsible host by making sure your guests don't drive if they have had to much alcohol.

Can Holiday Hosts Be Sued By a Guest?

hans@poppelawfirm.com (Blog Author)1352 — Tue, 20 Nov 2007 08:00:00 EST

Well, it's that time of year again and people are throwing parties. With those parties, many hosts are wondering if they can be sued by their guests if they get hurt.

Let's look at three different situations under Kentucky law.

So, you've decided to throw a party at your house. You've thought of everything. You have a great menu, great entertainment, and you invited all of your friends. You are looking forward to a great time. Before your guests start to arrive, you notice that the hand-rail on your banister leading upstairs has come loose—"no time to fix it, you tell yourself, let's just hope that no one needs to go upstairs." You also notice that the light going downstairs to the basement isn't working—without it, its pitch black. No problem you tell yourself, no one has any reason to be going to the basement anyway. Finally, you glance out at the sidewalk and notice that the recent cold weather has brought ice and snow and your walk has some obvious patches of ice.

If someone falls and is injured as a result of one of these three conditions, can you be sued?

This area of law is known as premises liability and is a sub-category of general negligence law. Under negligence law, an injured person must prove (1) the defendant owed a duty of care to the person injured, (2) the defendant breached that duty, and (3) there is a connection between the breach and injury. However, "[w]hile general negligence law requires the existence of a duty, premises liability law supplies the nature and scope of that duty when dealing with tort injuries on realty." The nature and scope of this duty is determined based upon the status of injured person at the time of his injury. A person can be an invitee, licensee, or trespasser.

Whether your party-goers are "invitees" or "licensees" is extremely important in determining your liability. A property owner owes an invitee the duty of discovering a dangerous condition, whereas he owes a licensee only the duty to warn him of a dangerous condition he already is aware of. As a general rule, an owner doesn't owe any duty to trespassers. Depending on the circumstances, a person's status can change from invitee, to licensee to trespasser.

The terms are somewhat misleading. You're probably thinking "Well, I threw a party and "invited" guests, so my guests must be invitees." You're probably also thinking "No one needs a "license" to come to my party, so obviously my guests aren't licensees."

You would be wrong.

A licensee enters by the express invitation or implied invitation of the owner solely on the licensee's own business, pleasure or convenience. As for social guests, although they may be social "invitees," they are licensees from the standpoint of the law. This means that you must warn your guests of a dangerous condition that you are aware of; but you don't need to go inspect your entire house to find all the potential dangerous conditions.

So, do you have to warn your guests about the handrail? What about the light to the basement? How about that ice? Well, this is where things get tricky. A home owner owes his guests (licensee) the duty of reasonable care, either to make the land as safe as it appears, or to disclose the fact that it is dangerous. "There is no duty to warn a licensee of any danger or condition which is open and obvious or which should or could be observed by the [guest] in the exercise of ordinary care."

So, here's how I analyze the handrail, burned-out light and ice.

If there is any chance your guests will be going upstairs, you have to tell them about the handrail. Place a sign on it or rope it off. Simple.

The burned-out light leading to the basement, where no one is supposed to be going, is likely not something you need to inform your guests about for two reasons. First, because no one is supposed to be going to the basement, if someone does, they likely become a trespasser--to whom you owe no duty. Second, even if they remain a licensee, you have no duty to warn your guests about conditions that are open and obvious. If a guest chooses to walk down a flight of stairs in the dark, and they fall, it's their own fault.

The ice issue is tricky. Generally, ice and snow are considered to be "natural perils" and are open and obvious. Generally, you don't need to warn guests about natural perils or open and obvious dangers. A couple of big exceptions are if you attempted to clean the snow and ice away and don't do a good job. Another situation where you may need to warn is if your guests have no reason to expect ice. For example, if the cause is a result of you spraying off your walkway with water. Better warn your guests about that.

Why Kanye' Might Not Be Able To Find a Lawyer for his Mother's Medical Malpractice Case

hans@poppelawfirm.com (Blog Author)1330 — Thu, 15 Nov 2007 08:00:00 EST

According to reports, Kanye West's mother, Dr. Donda West, may have died as the result of complications from cosmetic surgery. The surgery was performed by Dr. Jan Adams.
Before anyone rushes to the conclusion that the West Estate is entitled to a super large medical malpractice award, let me point out that California has caps on non-economic damages.
Since the mid-70s, California has limited a medical negligence victim's recovery for non-economic damages to $250,000. These are damages for things such as pain, suffering, inconvenience, physical impairment, disfigurement, and other non-pecuniary injury. The cap applies whether the case is for injury or death, and it allows only one $250,000 recovery in a wrongful death case.
According to the Rand Study, "Researchers found that cases involving patients who died were much more likely to have awards reduced than non-fatal injury cases, and the median change in total award size when the verdict was capped were larger among cases involving death than for injury cases (49 percent versus 28 percent)."
Many consumer advocate groups and California Consumer Attorneys point out that caps don't work and, instead, they hurt the most severely injured victims.
The Center for Justice & Democracy points out that the purposes of caps (lowering doctor's insurance premiums and discouraging frivolous lawsuits) has not been seen in California's system: "Thirteen years after the state's severe $250,000 cap on damages was enacted (MICRA, passed in 1975), "doctors' premiums had increased by 450 percent and reached an all-time high in California." But in 1988 California voters passed a stringent insurance regulatory law, Proposition 103, which "reduced California doctors' premiums by 20 per within three years," and stabilized rates. In the thirteen years after MICRA, but before the insurance reforms of Prop. 103, California medical malpractice premiums rose faster than the national average. In the twelve years after Prop. 103 (1988-2000), malpractice premiums dropped 8 percent in California, while nationally they were up 25 percent. Moreover, the law has led to public hearings on recent rate requests by medical malpractice insurers in California, which resulted in rate hikes being lowered three times. The "liability insurance crisis" of the mid-1980s was ultimately found to be caused not by legal system excesses but by the economic cycle of the insurance industry. Just as the liability insurance crisis was found to be driven by this cycle and not a tort law cost explosion as many insurance companies and others had claimed, the "tort reform" remedy pushed by these advocates failed. It has failed again. Only effective insurance reforms will stop these cyclical insurance crises."

As recently reported in the Wall Street Journal, severely injured victims of malpractice are unable to find lawyers because of caps. "As Malpractice Caps Spread, Lawyers Turn Away Some Cases."

While I doubt that Kanye will have any trouble finding a lawyer, others in California and other states that have unfair caps on damages may not be so lucky.

Addendum: Be sure to watch WHAS 11 News at 11:00 p.m., Tuesday November 27th for my interview on the subject of medical malpractice and plastic surgery.

Hans Poppe

Big Law Firm Sued for Big Dollars in Trademark Legal Malpractice Case

hans@poppelawfirm.com (Blog Author)1321 — Tue, 13 Nov 2007 08:00:00 EST

Paul Hastings sued for $30 mil by "Surf chick" by a surfing-gear maker that hired it to trademark the phrase "Surf Chick," the Maryland Daily Record reported.

Kat House Productions, LLC, owner of Surf-Chick clothing, has filed a legal malpractice suit against the mega law firm Paul Hasting, LLP

The Ventura, Calif.-based Kat House Productions say Paul Hastings failed to register trademarks after saying it had done so. According to the New York Attorney Malpractice Blog, "The suit, in Manhattan federal court, says Christian Dior SA was able to copy the "Surf Chick" mark because of the alleged negligence of the firm and several attorneys. "Had defendants properly applied for, and diligently prosecuted, the trademark applications, Christian Dior would not have been able to mimic and copy plaintiffs' mark," the complaint says. " to mimic and copy Kat House's work.

The suit is being heard in the U.S. District Court in the Southern District of New York.

Hans Poppe

Why Your Health Insurance Company May Get Most of Money from a Personal Injury Claim

hans@poppelawfirm.com (Blog Author)1319 — Tue, 13 Nov 2007 08:00:00 EST

Most people don't know what ERISA is. Heck, most attorneys don't know what ERISA is. And that's ok, as long as you don't hire an attorney that doesn't know what ERISA is.

ERISA is the abbreviation for a federal law that does a lot of stuff--one of the most important things it does is allows health insurance companies to provide group insurance to people throught their employers.

What most people don't know, and what a lot of lawyers fail to understand is that if you are injured through the fault of another person, your health insurance company can make a claim to the proceeds of any judgment or settlement you receive from the at-fault party. That's right, even though you may have paid the your own insurance premium for years and years, if you ever call on your insurance company to pay any of your bills related to someone else's negligence, whether is was a slip and fall, an automobile wreck, or even medical negligence, your insurance company will come back and try to take some to the money you receive to comensate you.

This is what is known as "subrogation." And insurance companies are really trying to be heavy handed in enforcing these provisions against injured victims. Sometimes, it makes it all but impossible to settle cases becase the health insurer's claim is so large, we can't put any money into our client's pockets. What's even worse is that some attorney's don't understand the law very well and they dont' even try to negotiate with the insurance company to take less. THAT'S A BIG MISTAKE. If you have a personal injury or medical negligence case, before you hire an attorney, make sure they understand ERISA subrogation and reimbursement. If they don't, run.

Here is a horrible story about a man who got bitten by the ERISA monster.

Hans Poppe

Judge Removed from Bench for Ordering Woman to Remove her Pants in Court

hans@poppelawfirm.com (Blog Author)1313 — Sun, 11 Nov 2007 08:00:00 EST

Judge James Michael Shull of Virginia was recently removed from the bench following some bizarre behavior in the courtroom. The Virginia Judicial Inquiry & Review Commission issue this opinion.

Some of the major criticisms of Judge Shull's behavior including him forcing a woman in a custody hearing to remove her pants to show him a wound she claims her husband inflicted. According to the opinion, Shull order the woman to remove her pants in open court not once, but twice. The Commission also pointed out that in a previous custody hearing Shull had decided a visitation issue by flipping a coin in open court.
It seems that this wasn't Judge Shull's first time in from of the Commission for improper conduct. In 2004, Shull was brought before the commission on allegations he called a 14-year old a "mama' boy" and a "wussy." The 2004 panel also determined that during a domestive violence hearing Shull had told a woman she should marry the man accused of beating her.
In taking a step that had only occured once before, the Commission removed a sitting judge from the bench by holding: "We further conclude that Judge Shull's violations of the Canons were grave and substantial. A judge's act of tossing a coin in a courtroom to decide a legal issue pending before the court suggests that courts do not decide cases on their merits but instead subject litigants to games of chance in serious matters without regard to the evidence or applicable law. Such conduct may have a profoundly negative impact, not only on the parties' ability to accept the "rule of law" imposed in their particular case, but also on the public's confidence in and respect for the judiciary. In order for our justice system to maintain the confidence and respect of the public, judicial decisions must be based on the evidence and pertinent law. The contrary actions of Judge Shull, reduced to their essence, were actions that denigrated the litigants whose case he decided and subjected our justice system to ridicule."

Kentucky's Judge are held to Kentucky Code of Judicial Conduct.

Hans Poppe

Hans Asked By Lexington Herald Leader to Comment on Allstate Verdict

hans@poppelawfirm.com (Blog Author)1162 — Thu, 11 Oct 2007 08:00:00 EST

Yesterday, a Lexington, Kentucky jury returned a verdict in favor of Allstate Insurance Company in a trial involving claims that Allstate acted in bad faith by violating Kentucky's Unfair Claims Settlement Practices Act. Lexington attorney J. Dale Golden was seeking $1.4 billion dollars on behalf of a Richmond, Kentucky woman who alleged that Allstate delayed paying her the fair value of her automobile accident case. Lexington Herald Leader writer Brandon Ortiz has been following the trial and asked me to comment on the verdict. You can read the article by going here:

Duke Lacrosse players file 150 page Lawsuit against Durham North Carolina

hans@poppelawfirm.com (Blog Author)1147 — Sat, 06 Oct 2007 08:00:00 EST

So much for "notice" pleading. The Duke Lacrosse players have hired some big time lawyers to file a 150-page Complaint to sue the city of Durham, North Carolina for their wrongful arrests. According to the Wall Street Journal Law Blog, they have hired Barry Scheck, Brendan Sullivan and Richard Emery. The Complaint alleges that the criminal case was "one of the most chilling episodes of premeditated police, prosecutorial and scientific misconduct in modern American history." Hans Poppe

Wyatt Tarrant Combs Sued For $80 Million in Legal Malpractice Suit

hans@poppelawfirm.com (Blog Author)1145 — Sat, 06 Oct 2007 08:00:00 EST

According to the West Virginia Business Litigation Blog, Wyatt Tarrant & Combs, LLP of Lexington is being sued for $82 million by a former client. Wyatt Tarrant represented A.T. Massey , a coal mining company, in a lawsuit brought against it by Harman Mining president Hugh Caperton. According to a United Mine Worker's Press Release, here are the essential facts of the underlying litigation between Massey and Harman Mining. "Massey purchased Wellmore Coal in 1997 and wasted no time breaking Harman Mining's 10-year metallurgical coal supply contract with Wellmore. The breaking of the contract drove Harman Mining quickly into bankruptcy and caused 120 UMWA miners to be displaced. To his credit–and against long odds–Harman Mining president Hugh Caperton chose to fight Massey in court, and after a four-year struggle, he prevailed to the tune of $6 million. A press statement put out by Harman Mining's lawyers shortly after the verdict cast the victory as "David beating Goliath," and the UMWA agrees. The win made things doubly sweet for Harman Mining, which, on August 1, prevailed against Massey when a Boone County jury awarded it $51 million in damages because of Massey's contract interference." Evidently, Massey's CEO, Don Blankeship, is not a very popular guy, especially with the coal miners. The same press release stated "Have you ever heard Massey CEO Don Blankenship bragging about his large posse of high-priced lawyers and how he won't hesitate to sic them on anyone he deems a threat to the company. Well, for UMWA members, it was great to see Blankenship's posse get beat badly last week by the little guy and his much smaller posse of lawyers." Maybe the press release is correct about Blankenship. The West Virgina Business Litigation blog reports "A.T. Massey filed this Legal Malpractice Complaint alleging "claims for negligence, breach of contract, and breach of fiduciary duty/conflict of interest, and claimed that the defendants failed to have a lawyer admitted to practice in Virginia sign the notice of appeal, which resulted in the dismissal of the appeal by the Virginia Supreme Court. Further, Massey alleged that the defendants changed language in its petition for appeal without Massey's knowledge and for the purpose of making a legal malpractice claim more difficult to assert. Specifically, Massey alleged that the petition in draft form asked that the Supreme Court "reverse and remand" the verdict and "reverse and render final judgment." But in the final version, only the "reverse and remand" language was included. According to the complaint, if the defendants had properly filed the notice of appeal and not changed the language in the petition for appeal, "the Virginia Supreme Court would have reversed the judgment of the trial court due to its erroneous rulings at trial and entered final judgment in Wellmore's [one of the plaintiffs] favor." Typically, in a legal malpractice case, the plaintiff has to prove that it would have prevailed in the underlying matter but for its counsel's malpractice, which is the so-called "case within a case" requirement. So Massey has to prove its assertion that it would have been successful before the Virginia Supreme Court. Massey claimed that its lawyers knew that the Virginia verdict "would have a direct and preclusive effect" on the Boone County, West Virginia action. Massey has asked that the defendants pay the verdicts in the two cases, plus the pre- and post-judgment interest from both actions, all of which totals at least $82 million. Massey also seeks reimbursement of its attorney's fees and expenses, and punitive damages as a result of the defendants' alleged intentional conduct in changing the language in Massey's petition for appeal" Hans Poppe

Hans Poppe Text Interview with WHAS 11

hans@poppelawfirm.com (Blog Author)1142 — Fri, 05 Oct 2007 08:00:00 EST

Louisville attorney analyzes Ogborn verdict 06:07 PM EDT on Friday, October 5, 2007 ? VIDEO: Expert analysis Is the McDonald's verdict a significant decision? What does it say to people -- attorneys, corporations and employees --- across the country? "It's absolutely a success," says Louisville attorney Hans Poppe. Poppe says that's the major point about today's ruling: that the Louise Ogborn who was strip searched and sexually assaulted, who tearfully told jurors about that day three years ago, is the same Louise Ogborn who was smiling today, pleased with the decision. "Louise Ogborn was probably more vindicated by the fact she received an award and the jury said she was not responsible for what happened to her," said Poppe. The jury of eight women and four men also decided that Donna Summers suffered as well. Summers was the assistant manager at McDonald's at the time of the incident. She was the one who strip searched Ogborn because the voice on the other end of the phone said it should be done. "I think the biggest surprise is that the jury decided Donna Summers should be entitled to $1.1 million... and the jury believed that was McDonald's fault." Poppe says the jury's award in this case proves they were reasonable and fair. The amount they awarded Ogborn certainly won't hurt McDonald's, but Poppe says it will send a message. "Today's jury award was likely the equivalent of four days of coffee sales nationwide, so this isn't an amount of money that will make McDonald's financially hurt. It's certainly not enough money to make them bankrupt," Poppe said. "But I think it is enough money to make them pay attention." It may also make employees of McDonald's and other corporations across the country pay attention. There have been dozens of hoax caller incidents nation-wide. Poppe represented sex abuse victims who filed suit and won against the local Catholic archdiocese. Web story produced by Jay Ditzer.

Hans Gives WHAS 11 an Analysis of the $6.1 Million McDonald's Verdict

hans@poppelawfirm.com (Blog Author)1141 — Fri, 05 Oct 2007 08:00:00 EST

Today a jury awarded Louise Ogborn $6.1 Million in her lawsuit against McDonalds arising out of a hoax phone call 3 years ago that led to her being stripped searched and forced to perform sodomy on a manager's boyfriend. A few days ago I was asked by WHAS news to explain the jury instructions and what the jury would be deciding. T oday I was asked to be present for the reading of the verdict and provide an analysis. I truly believe this was a victory for Louise and her lawyers. This Bullitt County jury sent a message to McDonalds. Protect your employees, not your brand image. You can read an in depth post about Louise Ogborn and the case as well as see the 20/20 interview from 3 years ago by clicking here Hans Poppe

Former Allstate Adjuster Testifies In Lexington Bad Faith Trial

hans@poppelawfirm.com (Blog Author)1140 — Fri, 05 Oct 2007 08:00:00 EST

Geneva Hager, 60, suffered neck and back injuries in a July 1997 rear-end car wreck in 1997 in Lexington. Her insurance claim with Allstate Insurance, which insured the truck driver who hit her, was not settled until December 1999. Her attorney, Dale Golden sued them for bad faith and is trying the case in Lexington. Allstate has a lot of bad press. Former Allstate adjuster Debbie Niemer took the stand and explained how Allstate forced people in minor accidents to take less for their claims than they are worth. She talked about how adjusters are penalized if they pay more than the predetermined value of a case. She discussed how Allstate keeps a list of doctors to send injury victims to that will minimize the claimant's injuries. She also revealed that Allstate keeps lists of plaintiffs attorneys that are aggressive, and those who aren't! You can read more about her testimony in the Lexington Herald Leader. Hans Poppe

WHAS 11 Interviews Hans about the McDonalds Strip Search Trial

hans@poppelawfirm.com (Blog Author)1133 — Thu, 04 Oct 2007 08:00:00 EST

The jury is deliberating the Bullitt County case of Louise Ogborn v. McDonalds right now. I sat down last night with WHAS 11 News to discuss the case. Here is the link (you may have to hit refresh to see it) if it doesn't work, click here:

You can read the jury instructions by going here...

Hans Poppe

Things Heat Up in Lexington Bad Faith Trial

hans@poppelawfirm.com (Blog Author)1127 — Tue, 02 Oct 2007 08:00:00 EST

Sounds like Dale Golden is heating things up in the $1.4 billion Lexington bad faith trial. Today, was the examination of noted epidemiologist Michael Freeman who testified that Allstate's MIST (Minor Impact Soft Tissue) studies were bogus and not based on science.

Golden also examined an Allstate employee on how they handle these types of claims. According to the Lexington Herald leader, things go a little testy between the two of them. My ability to link isn't working properly, so here it is http://www.kentucky.com/181/story/191852.html

Hans Poppe

From Good Hands to Boxing Gloves-Lexington Lawyer Seeks 1.45 billion in Bad Faith

hans@poppelawfirm.com (Blog Author)1119 — Sun, 30 Sep 2007 08:00:00 EST

In a bad faith insurance trial scheduled to begin in Fayette Circuit Court in Lexington, Kentucky, attorney Dale Gordon is seeking $1.45 billion dollars in damages against Allstate Insurance company on behalf of Geneva Hager of Richmond, Kentucky.

Insurance Bad Faith is when an insurance company unreasonably refuses to pay a claim, or delays paying the claim and forces the case into litigation. In Kentucky, in addition to common law first-party bad faith, we have the Kentucky Unfair Claims Settlement Practices Act. This statute obligates insurance companies to deal fairly with their own insureds (first-party) as well as third parties that may have been injured by the insurance company's insured.

According to the Lexington Herald Leader, "the trial appears to be only the third time internal company documents that Allstate has fought to keep secret will be shown to the public. (The first was when Hager asked for class certification, which was ultimately denied, in a hearing in May 2005.) The documents, known as the McKinsey documents, were created by an international consulting firm and outline how the insurance giant transformed its claims handling in the 1990s." "The most famous document, which became the title of a book, plays off the company's slogan. It states that claimants who accept Allstate's offers are in "good hands" while those who object get the "boxing gloves." Trial lawyers call the McKinsey documents a blueprint for fraud"

The case arises out of Allstate's refusal to settle a car accident case. Hager suffered neck and back injuries in 1997 after the truck in which she was a passenger was rear-ended. It took two years for her to resolve her pain-and-suffering claim, which was settled for the $25,000 policy limits four days after it was scheduled for trial, her attorneys have said.

Orginally, attorney Golden was seeking $800 million in damages, but has now doubled that figure, a mistake according to New Mexico trial lawyer David Berardinelli. "That's the worst thing they could do, that is a typical mistake a lot of these guys make, because then it looks like greed. It's like, 'So we want to make you a billionaire for why? This person here? Over a $25,000 car accident?' People have a hard time with that."

Dale Golden has achieved has a very good reputation and has had several large plaintiff's verdicts in the past. I hope he gets another big one here.

Is an Attorney that Commits Legal Malpractice Entitled to a Credit

hans@poppelawfirm.com (Blog Author)1074 — Tue, 18 Sep 2007 08:00:00 EST

Any interesting debate is brewing in the legal malpractice arena. If an attorney takes a case on a contingent basis be entitled to reduce the client's award for legal malpractice by the amount the attorney would have received as compensation? Sound complicated? Well, it is. Here is an example. Vicky Innocent is hurt badly in a car wreck. She hires Larry Lawyer to represent her on a 1/3 contingent basis. This means that the lawyer will take 1/3 of whatever he recovers Vicky for her injuries (for example, if he recovers $100,000 for her, then Larry's fee would be $33,333.33). Now let's assume that Larry Lawyer forgets to file the lawsuit within the statute of limitations and Vicky can no longer recover from the at-fault driver. So, Vicky hires a Malpractice Attorney to to sue Larry Lawyer to recover for her what she would have received from the car wreck. If a jury Vicky $100,000, does Larry Lawyer get to subtract $33,333.33 from it and just give Vicky $66,666.66? If so, then she is likely going to be hit with another whammy when Malpractice Attorney asks for his 1/3 contingent fee. Poor Vicky may only end up with $33,333.33 after the reduction. Such is the argument currently brewing over legal malpractice damages in Texas.

Kentucky has never addressed the issue; however, I don't think it would allow Larry Lawyer a set-off for his contingent fee because of KRS 411.165.

Hans Poppe

Man Loses Leg in Motorcycle Wreck--Lawyer Steals His Money

hans@poppelawfirm.com (Blog Author)1034 — Tue, 11 Sep 2007 08:00:00 EST

Thomas Peer loses his leg in a motorcycle accident and hires a personal injury attorney to sue the at-fault driver. As if losing his leg wasn't bad enough, his lawyer tells him the at-fault driver doesn't have much insurance to cover his injuries. Well, a small settlement is better than no settlement--until your lawyer decides to spend it on his own child support payments and office expenses. The bar has stripped him of his law license, but that doesn't put any money into Thomas' pocket.

Jury Selection in McDonald Hoax Trial Began Today (what does it mean)

hans@poppelawfirm.com (Blog Author)1024 — Mon, 10 Sep 2007 08:00:00 EST

Jury selection began today in the Ogborn-McDonald's hoax trial. Special Judge Tom McDonald has called up 180 potential jurors to be asked question about their views on issues that may be involved in the case.

So, how does a lawyer "select" a jury. Actually, jury selection is not an accurate term. Lawyers do not get to "select" jurors. What they actually do is ask questions in order to determine whether potential jurors have any special knowledge or strongly held beliefs that might make them biased or prejudiced towards one side. This questioning is known as "voir dire." If a juror does have some bias or prejudice, the judge (after hearing arguments from the lawyer) may decide to exclude the juror (this is known as a "for cause" strike). Each side in a case also has "peremptory strikes." Usually, each claimant or defendant has four of these strikes (sometimes its only three). If the lawyer can't convince the judge to exclude a potential juror, the lawyer can use these four strikes to exclude any potential juror for any reason (as long as the strike isn't based on race).

In this case, this means the lawyers can likely exclude a total of 8 jurors for any reason-- and the court can exclude an unlimited number of people that it believes might not be able to be fair in this particular type of case. If the court excluded 50 people (which would be highly unlikely), this would still leave about 120 potential jurors--about about 106 more than are necessary for a trial. So, how do we get to 12? Random draw. Once the judge makes his or her exclusions, and then the attorneys make theirs, the court draws 12-15 names at random. This becomes the jury. Some attorneys complain that what you ultimately end up with is 12 people who didn't talk and didn't answer any questions--so there was no reason to exclude them.

Believe it or not, both sides are trying to find 12 people who know nothing about the case and will listen to all of the evidence before making a decision. The questioning of jurors (jury selection) helps the judge and lawyers decide which 12 people can do that.

Hans Poppe

McDonalds Sanction in Strip Search Case

hans@poppelawfirm.com (Blog Author)1012 — Sat, 08 Sep 2007 08:00:00 EST

The Courier Journal reports that "Senior Judge Tom McDonald has sanctioned McDonalds for withholding evidence in a lawsuit by a former employee who was the victim of a strip-search hoax at its Mount Washington store in 2004. Senior Judge Tom McDonald said Wednesday that the company either engaged in "plausible deniability" or deliberately "hid the ball from the court, opposing counsel and its own lawyers" when it failed to disclose at least four prior hoaxes at other McDonald's restaurants around the country.""

You'll recall that McDonalds has been sued over a bizarre prank back in 2004 where someone called the store pretending to be a police officer and instructing the manage to take Louise Ogborn to the back of the store a strip search her. The store manager then called her boyfriend to the store to watch Louise while the manager returned to work the front of the store. The telephone caller then instructed the boyfriend to strip search her as well as force her to engage in sex acts-- all under the guise of being some kind of investigation.

ABC interviewed the McDonald's manager who allowed this to happen as well as Louise.

Louise has one of the best and most aggressive attorneys in Kentucky representing her, Ann B. Oldfather. McDonalds is represented by one of the largest firms in Kentucky, Greenbaum, Doll & McDonald. William R. "Pat" Patterson is the lead attorney for McDonalds and is highly respected in the community.

The trial is scheduled to begin Monday.

Fen Phen Lawyers to Stay in Jail

hans@poppelawfirm.com (Blog Author)1011 — Sat, 08 Sep 2007 08:00:00 EST

The 6th Circuit Court of Appeals has refused to hear an appeal of Judge Bertelsman's Order jailing the Fen Phen Lawers accused of steal millions from their clients. Read the Courier Journal article.

Hans Poppe

Georgia Man Wins $1 Million Verdict in Legal Malpractice Case

hans@poppelawfirm.com (Blog Author)1010 — Sat, 08 Sep 2007 08:00:00 EST

Here is an interesting legal malpractice case out of Georgia. It seems that Donald W. Osborne was defending an automobile crash case where his client, Don Turner, was accused of causing an accident that killed someone. Here is the problem. Lawyer Osborne never contacted client Turner about the trial. In fact, he never even spoke to his client before the trial. One more thing. Lawyer Osborne stipulated (admitted) that client Tuner was negligent---even though he never spoke with his client. The jury awarded $1.7 million against the absent Turner. By the time Turner knew about the trial it was over, and he was facing a huge judgment.

In the legal negligence trial, Taylor W. Jones of Jones Jensen & Harris sued the former law firm alleging they bungled the car wreck defense and would have won the case if they had not commited legal malpractice. A jury agreed.

Georgia insurance defense law firm, Swift, Currie McGehee and Hiers defended lawyer Osborne. James T. McDonald, of the Swift law firm defended Osborne.

The jury awarded Turner $991,000 against his "lawyer."

What I don't understand is why the jury only awarded half of the damages. Generally, in cases like this, the damages in the first case establish the damages in the legal malpractice case. Here, that should have been $1.7 million, not the $991,000 the jury awarded.

Hans Poppe

Progressive Insurance Caught Sneaking Into Church Support Groups to Spy on Claimants

hans@poppelawfirm.com (Blog Author)976 — Tue, 28 Aug 2007 08:00:00 EST

As an attorney who handles automobile accident personal injury cases, I always tell my clients that, "regardless of how injured you are, the insurance company could be videotaping your every move." But even I didn't think an insurance company would stoop to the level of having its investigators sneak into church support groups where abortions, addictions and other personal problems were discussed. Not only that, they taped recorded them.

Well, seeing is believing. Progressive Insurance Company's CEO has admitted that its investigators have done exactly this. According to the Atlanta Journal Constitution, a pair of detectives hired by Progressive became members of the Southside Christian Fellowship Church in August 2005 in order to get damaging information on two church members involved in a 2004 traffic accident.

Apparently, Progressive thought this information might be useful in complying with their duty to "investigate" claims.

If a lawyer were to engage in such behavior a suspension would likely be the result. I wonder if anything will happen to Progressive?

Hans Poppe

Jury in Keeney's Legal Malpractice Case Returns $5 Million Dollar Verdict

hans@poppelawfirm.com (Blog Author)971 — Mon, 27 Aug 2007 08:00:00 EST

Yesterday, I wrote about a legal malpractice trial going on here in Louisville. In one of the largest legal malpractice verdicts in Kentucky history, a jury returned a verdict today against attorney Steve Keeney for $5 million. The allegations of legal malpractice arise out of his handling of a case for Brenda Osborne, of Middlesboro. The Jefferson Circuit Court jury determine that Keeney lost a federal court case stemming from the an airplane accident in which she could have recovered about $1.3 million (this is known as the "case within a case." It awarded her that amount, as well as $250,000 for mental anguish. The jury also voted 11-1 to award of $3.5 million in punitive damages, which are meted out to deter and punish intentional and willful misconduct.

This was an unusual case because Osborne was not physically injured when a small plane crashed into her home. She escaped her home without physical injury--however, Keeney told her the case was worth about a $1 million. This jury agreed with her; however, it's Keeney's legal malpractice insurance company that will have to pay the verdict, not the pilot of the plane.

The verdict will likely be appealed to address the issue of whether emotional distress damages are available when you don't have a physical injury. It has always been my position in legal malpractice cases that physical injury is not required in a legal malpractice case because of a special Kentucky statute KRS 411.165.

Fortunately, we may soon have an answer on this issue as I will be appealing a judge's ruling on this exact issue later this year. I'll post the briefs to the site.

Hans Poppe

Local Attorney Steve Keeney on Trial for Legal Malpractice

hans@poppelawfirm.com (Blog Author)969 — Sun, 26 Aug 2007 08:00:00 EST

Courier Journal reporter Andrew Wolfson wrote an interesting article in today's paper on a legal malpractice case (what is the difference between malpractice and negligence) being tried here in Louisville, Kentucky. Most Louisvillians will remember attorney Steven H. Keeney as the subject of the book Death Benefit, which outlines his involvement unraveling the murder of a woman by her two companions in California.

Now Keeney is defending himself against allegations he took a client's money he wasn't entitled to and then failed to file her lawsuit before the statute of limitaions expired. It seems Keeney was hired by a woman after a plane crashed into her house. She claims he was hired to help her obtain insurance benefits and to sue the pilot and recover for her personal injuries and emotional distress as a result of the plane crashing into her house and the subsequent issues of dealing withher insurance company. According to the article, Keeny took 20% of her homeowner's insurance proceeds, but failed to file the personal injury lawsuit against the pilot on time, resulting in her personal injury claim being dismissed.

It seems this is not the first time Keeney has had problems in his legal career. His license to practice law has been suspended by the Kentucky Supreme Court on two occasions.

Here is the first order of suspension:

Pursuant to SCR 3.370(6)(7), attorney Steven H. Keeney of Louisville has requested a review of a recommendation by the Board of Governors of the Kentucky Bar Association. The recommendation was to the effect that Keeney should be suspended from the practice of law for 59 days for being in violation of SCR 3.130-1.16(d) for failing to return unearned fees advanced to him by a client, and for being in violation of SCR 3.130-1.3 for failure to exercise diligence and promptness in the representation of a client.

His primary defense is his record and reputation for good character and statements that the charges are unfounded because of a contract that existed between himself and the client. This contract was provided to the client by Keeney's office in the form of what is called an Engagement Agreement.

The contract clearly states that the client was to advance the sum of $4,000.00 and that the advance would be first applied to costs and then to fees. There is nothing within the record to lead this Court to conclude that the $4,000.00 payment was for prior services rendered or any other purpose but to pursue a civil action against his client's former employer. There is no evidence to indicate that this task was ever undertaken by Keeney. To further compound his misconduct, Keeney stubbornly refused to return his file to the client on request and maintains he has done nothing to violate the standards of practice.

The Court has fully considered the notice for review and brief filed by counsel for Keeney and the brief for the Kentucky Bar Association.

The recommendation of the Board of Governors of the Kentucky Bar Association that Keeney be suspended from the practice of law for a period of 59 days for violations of SCR 3.130-1.3 and SCR 3.130-1.16(d) is hereby adopted as the decision of this Court.

IT IS ORDERED that

1) Steven H. Keeney shall pay the costs of this action.

2) That Steven H. Keeney is suspended from the practice of law in the Commonwealth of Kentucky, commencing with the date of the entry of this order, for a period of 59 days.

All Concur.

ENTERED this 1st day of July, 1993.

/s/ Robert F. Stephens

Chief Justice

Here is the second order of suspension:

Steven H. Keeney accepted a retainer fee from an out-of-state lawyer to assist in collecting an attorney's fee from an estate in Kentucky. Because Keeney ceased communicating with the client, the matter was turned over to the Kentucky Bar Association for further action.

After the filing of the complaint, the respondent failed to respond to inquiries from the KBA. As a result, charges were made against the respondent. Count I charged a failure to keep a client reasonably informed about the status of a matter and to promptly comply with reasonable requests for information. Count II charged a failure to act with reasonable diligence and promptness in representing a client.

After investigation, the KBA found that the respondent did accept the retainer fee and did not perform any legal services for his client, although, during the course of the investigation, the respondent did return the retainer fee. The Board of Governors found that there was sufficient evidence to support a verdict of guilt on both counts. The Board also entered into the record the fact that Keeney had been previously suspended from the practice of law on July 1, 1993, for fifty-nine days for failure to return unearned fees advanced to him by another client and for failure to exercise diligence and promptness in the representation of that client. A sixty-day suspension was recommended.

The respondent, Steven H. Keeney, is hereby found guilty of one count of failure to keep a client reasonably informed about the status of a matter and to promptly comply with reasonable requests for information, and one count of failure to act with reasonable diligence and promptness in representing a client. As a result, the respondent is suspended from the practice of law for sixty days from the date of this Order.

ENTERED: February 24, 1994.

/s/Robert F. Stephens

ROBERT F. STEPHENS,

Chief Justice

The trial has been going on for almost two weeks and the jury should begin deliberations on Monday.

Hans Poppe

PBS Documentary on Why Insurance Companies Deny Legitimate Claims

hans@poppelawfirm.com (Blog Author)932 — Sun, 19 Aug 2007 08:00:00 EST

I see a lot of insurance bad faith here in Louisville, Kentucky. Finally, the national media is starting to take notice that insurance companies continue to post record profits at the expense of the policyholders to whom they have made promises. Please watch this great 30 minute PBS special called Home Insurance 9-1-1. After watching this, you will know more about insurance bad faith than most lawyers. Hans Poppe

Medicare To Stop Paying for Medical Mistakes

hans@poppelawfirm.com (Blog Author)930 — Sun, 19 Aug 2007 08:00:00 EST

According to an article today in the Washington Post, Medicare announced a policy change this year that could have some serious implications in the area of medical malpractice and nursing home negligence In short, Medicare will no longer pay for treatment of conditions that were caused by a healthcare provider, or could have been prevented. The rule identifies eight conditions _ including three serious types of preventable incidents sometimes called "never events" _ that Medicare no longer will pay for. Those conditions are: objects left in a patient during surgery; blood incompatibility; air embolism; falls; mediastinitis, which is an infection after heart surgery; urinary tract infections from using catheters; pressure ulcers, or bed sores; and vascular infections from using catheters.

Lisa A. McGiffert, a health policy analyst at Consumers Union, said: "Medicare is using its clout to improve care and keep patients safe. It's forcing hospitals to face this problem in a way they never have before."

While I can certainly understand the reasons behind this policy change, it does cause me some concern. If Medicare is no longer going to pay for the costs of treating a medical mistake, who will shoulder this burden? Will it be passed on to the victim.

Pressure sores, while entirely preventable, are a common occurence in poorly run nursing homes and require extensive treatment. If the nursing home or hospital is not paid by Medicare to treat the wound, will they do it?

Hans Poppe

Louisville, Kentucky

update: I was so concerned about the implications of the new "no pay" rule and whether consumers would be required to foot the bill for the medical mistakes of a hospital, I decided to do some more research. At least according to Jeff Nelligan, the director of Media Affairs for Medicare, as reported to Fox News, "The hospital cannot bill the beneficiary for any charges associated with the hospital-acquired complication," the final rules say.

This being said I'm certain private insurers will follow suit and they may not have the foresight to include such a restriction in their provider contracts.

5th Largest Accounting Firm Ordered to Pay $521 Million in Malpractice Case

hans@poppelawfirm.com (Blog Author)916 — Wed, 15 Aug 2007 08:00:00 EST

According to the Miami Herald, a jury Tuesday ordered BDO Seidman, the nation's No. 5 accounting firm, to pay more than $351 million in punitive damages in an accounting malpractice case, bringing BDO's potential liability in the case to roughly $521 million, an amount CEO Jack Weisbaumsaid threatens its operations. The accounting malpractice jury found BDO negligent for failing to find massive fraud in its audits of a financial services company. The jury also awarded $170 million in compensatory damages to the Plaintiff, Portugal's Banco Espirito Santo. The jury decided Monday that BDO Seidman must compensate the bank and provide punitive damages for failing to reveal massive fraud at the bank's former partner, E.S. Bankest LLC. The same jury found the accounting firm grossly negligent in June. It is essential that in an accounting malpractice lawsuit, the plaintiff prove the defendant's negligence by proving a violation of a reasonable standard of care. This typically means that if the level of care in the same field of accounting is taken as a standard of care, the defendant must have acted below the standard. For example, if a personal tax accountant fails to timely file a client's tax return (without getting an extension) he violated the standard of care through his carelessness. However, only a handful of accounting malpractice cases are that simple. Obviously this was not a simple accounting malpractice case and it took four months to try. BDO was defended by attorney Adam Cole at Greenberg Traurig The Bank was represented by Steven Thomas at Sullivan Cromwell's Los Angeles office. Hans Poppe

Fen Phen Lawyers Put in Jail

hans@poppelawfirm.com (Blog Author)894 — Sun, 12 Aug 2007 08:00:00 EST

This falls under the category of "be careful what you wish for." The three indicted Fen Phen lawyers went to court on Friday to ask for a continuance in their criminal trial. (If you are unfamiliar with the allegations, read them here and read the Courier-Journal story here Well, they got a continuance alright--they also got something they didn't plan on!U.S. District Judge William O. Bertelsman ordered Shirley Cunningham Jr., William Gallion and Melbourne Mills Jr. removed from the courtroom and confined in the Boone County Jail. Bertelsman indicated the lawyers have a tremendous incentive to stonewall, especially since they have not yet given an accounting of the $42 million allegedly stolen from their clients they have been ordered by another judge to repay. The trial has been rescheduled to January 2008 and it appears Bertelsman may keep them in jail until the trial. I'm sure this is quite different accomodations to what these lawyer/ Curlin horse owners are used to. Hans Poppe

Fen-Phen Lawyers Ordered to Repay Clients $42 Million

hans@poppelawfirm.com (Blog Author)860 — Sat, 04 Aug 2007 08:00:00 EST

On Wednesday, Judge William Wehr ordered Shirley Cunningham, Jr., Melbourne Mills, Jr., and William Gallion to repay their clients $42 Million for breaching fiduciary duties owed to their clients by taking more money from the settlements than they were entitled to. You can read about the allegations here. This is different than a legal malpractice case, because they clients don't have to prove the lawyers were negligent. Instead, the clients have to prove the lawyers breached their fiduciary duties. Lawyers owe their clients the highest duty of trust. This means a lawyer cannot place his own interest (or anyone else's for that matter) above the interests of his client. Even if a lawyer achieves a good result for his client, if he violates his fiduciary duties, he may be held liable. That is exactly what happened in some breast implant litigation in Texas, and it is exactly what happened here in Kentucky. There is no argument that this was a substantial settlement achieved on behalf of the Fen-Phen plaintiffs against a major drug company; however, the lawyers took more money than they were entitled to. Now a judge has said they have to give it all back, plus interest and possibly punitive damages. Another interesting development is that Judge Wehr has also ordered Cincinnati lawyer Stan Chesley to be prepared to attend trial and defend himself against the same allegations. This is an interesting development becuase Chesley has denied he was involved in the misappropriation of client funds and was simply involved in negotiating the settlement with Wyeth Pharmacutical. Chesley is an extremely successful lawyer who has been involved in major cases in Kentucky and across the country. Judge Wehr has previously stayed the proceedings against Chesley but is expected to rule next week on whether to lift the stay. Lexington attorney Angela Ford represents the Fen-Phen clients against the lawyers and has dowloaded the pleadings and orders to her website. Hans Poppe

W.V. Supreme Court Determines Erie Insurance Company Likely Acted in Bad Faith

hans@poppelawfirm.com (Blog Author)848 — Fri, 03 Aug 2007 08:00:00 EST

Elizabeth Murfitt's wrist shattered in a car wreck that was not her fault. Erie insurance offered her $45,000 prior to trial. On the second day of trial Erie settled for $800,000. Murfitt filed suit against Erie claiming they acted in bad faith (wrongfully denied her claim or tried to get her to settle for less than it was worth). Ms. Murfitt then sued Erie and demanded they tell her what the reserves where on the claim, but Erie tried to keep it secret. The trial court ordered Erie to disclose what they believed they claim was worth when they offered the $47,000 and Erie appealed. Writing for a unanimous West Virginia Supreme Court, Justice Benjamin wrote "It appears Erie consistently offered to settle Ms. Murfitt's claim for less than her incurred medical bills and without regard for her lost wages for nearly two years prior to the commencement of the trial of the underlying personal injury action," Benjamin wrote. "Then, within the month before the personal injury trial was to commence, Erie's settlement offer increased exponentially without any objective evidence of newly discovered facts justifying such a dramatic increase." This is classic bad faith behavior. Insurance companies have an interest in holding onto their money as long as they can, even if they know they will have to ultimately pay. Or, as Wimpy used to say... Hans Poppe

Survery in Texas finds Judges think Juries award TOO LITTLE damages

hans@poppelawfirm.com (Blog Author)847 — Fri, 03 Aug 2007 08:00:00 EST

Could this possibly be correct??? Judges, by a whopping majority, think that juries don't award enough damages in personal injury lawsuits. At least that's one of the conclusions of a Baylor Law Review Survey recently conducted among judges in Texas. And, if you think that is surprising, try this one on for size. Almost 80% of Texas judges think there additional tort reform is unnecessary. Straight From the Horse's Mouth; Judicial Observations on of Jury Behavior and The Need for Tort Reform. Hans Poppe

Heavy-Weight Texas Trial Lawyer to Repay Clients $33 Million

hans@poppelawfirm.com (Blog Author)830 — Tue, 31 Jul 2007 08:00:00 EST

Two of Texas' heavy hitter trial lawyers have squared off against each other in an arbitration and one has to pay his former clients over $33 Million. John O'Quinn of The O'Quinn Law Firm has been ordered to repay thousands of his clients after being sued by another Texas heavy-weight, Joe Jamail. Joe Jamail is one of the most successful lawyers in the country and is infamous. Watch what it's like to be in a depostion with him. But, on to the meat of the story. The arbitration decision arose from a class action lawsuit against O'Quinn filed in 1999 by three ex-clients in East Texas. That lawsuit was later joined by thousands of women alleging O'Quinn improperly took funds from their settlements for group charges they had not agreed to pay. "Quite simply, if O'Quinn is allowed to improperly withhold client funds with impunity, other lawyers may believe that they can do likewise. Such a result would destroy the very integrity of the special and unique relationship that exists between attorney and client," the final order states. The order says that O'Quinn, through three legal entities under which he has practiced law, must pay back $10.7 million he improperly charged clients and a $25 million penalty because he broke his contract with them. The interest accumulated since the case began eight years ago could be more than $21 million. And he will be asked to pay about $2 million in legal fees for the lawyers his ex-clients hired." Ouch. The interesting thing is that the panel determined that "'Quinn did an exceptional job for his clients." Fortunately for Kentucky residents, Kentucky has a legal malpractice statute that says if a lawyer breaches his duty to his client, he can be sued and made to refund his fee. The statute does not require the client to prove the lawyer committed legal malpractice, or even did a bad job. The statute only requires the client prove the lawyer breached his fiduciary duty to his client. In simple terms, breaching a fiduciary duty means the client put his own interests ahead of his client. Unfortunately, this actually happens. I can't pass judgment on whether O'Quinn put his own interests ahead of his clients, (like Kentucky Lawyers Melbourne Mills Jr., Shirley Cunningham Jr., and William Gallion) and it appears he achieved a great result on their behalfs. I'm certain we haven't heard the end of this case. Hans Poppe

Big TV Advertising Law Firm Sued for Legal Malpractice When Client Only Received $6.60 of Her Settlement.

hans@poppelawfirm.com (Blog Author)762 — Sat, 30 Jun 2007 08:00:00 EST

Justine Thompson is mad. And she has good reason to be. Her lawyers settled her case, took $13,000 in legal fees and expenses, re-paid the state for some of her medical expenses and mailed her a check for $6.60. Tragic. The newspaper reports that Justine has sued Cellino & Barnes for legal malpractice. Her new lawyers (Burks and Williams) claim this is more than just an example of a woman whose case was mishandled, they say, this is a clash of philosophy on how to attract and satisfy clients in the controversial field of personal injury law. It pits personal injury lawyers like Burke and Williams, who traditionally got their cases from referrals by other lawyers, against law firms like The Barnes Firm, which attract thousands of clients by spending millions of dollars in ads. Barnes and Williams claim that the Barnes law firm has too many cases and settles them instead of taking them to a jury in order to get the fair value. They claim Thompson's case was worth $400,000 to $500,000, not the $35,000 it settled for the morning of trial. They also claim Barnes never intending to try the case and wasn't prepared to do so. The further allege that Barnes told Thompson that if she didn't settle, and they lost the trial, she would be responsible for $18,000 in court costs and could lose her house. This simply confirms one of the arguments that many personal injury lawyers make. The firms that advertise heavily on television are not the type of firms that maximize the value of a case. They handle too many of them. According to the article, Barnes once bragged to other attorneys he settled 176 cases in 2006, or 3 a week. There is no way that a single attorney can competently hande 176 personal injury cases every year and do the work necessary to maximize their value. As I've said before, insurance companies know which attorneys are willing to try cases, and they know which ones are just looking for a quick and easy check. The former is always better than the latter. You should never hire a lawyer or law firm simply because they have a lot of television ads and say they'll get you "big" money or provide "big" service. The chances are slim you'll get either. Hans Poppe

Anatomy of a $20 Million Dollar Bad Faith Verdict

hans@poppelawfirm.com (Blog Author)761 — Sat, 30 Jun 2007 08:00:00 EST

Princeton Insurance Company has agreed to Pay $20 Million dollars to settle a claim brought by a bar. It seems Princeton failed to keep the "Princeton Promise," "Built on Trust-To Be There-To Do The Right Thing-To Lead." Well, let's take a look at how Plaintiff's attorney Robert Mongeluzzi achieved such a large bad faith verdict. All bad faith cases start as some other kind of lawsuit or dispute. This one started out as Tuski v. Ivyland Cafe, Ltd.. Joseph Tuski was a construction worker who was working on a highway project when he was hit by a drunk driver and left a quadriplegic. Tuski sued the driver as well as the where he worked as a manager. The case went to trial and a Philadelphia jury awarded Tuski $75 million (including $25 million in punitive damages). The trial judge reduced the award by cutting it in half. The reduced award of $37.5 million was affirmed on appeal by the Pennsylvania Superior Court. Following the verict, a lawsuit was brought against the bar's insurance company alleging they could have settled the lawsuit by paying the bar's million dollar insurance limits. The suit alleged Pennsylvania Insurance acted in bad faith by refusing to settle the case and forcing it to trial. In court papers, the plaintiffs team argued that the insurer had "actual knowledge" of Tuski's "devastating injuries" and also knew within the first few months of litigation that the Ivyland Cafe "had no possible defense" against Tuski's claim. "Any rational insurance professional would have recognized that a Philadelphia jury would find Joe's condition so compelling, and the circumstances of this loss so heinous, as to guarantee an enormous verdict," the plaintiffs team wrote in a court brief. But the brief said "Princeton repeatedly ignored the facts, the law and the advice of its own appointed counsel, steadfastly refusing to make any offer whatsoever to settle the claim." Underlying the significant injuries, was the outrageous conduct of the drunk driver. Not only was he the manager of the bar, he fled the scene of the accident. He crashed he car a second time on the way to his home. He then had his girlfriend drive him to his sister's house who promplty called the police. So, what are the elements of a huge bad faith verdict? 1. Inncocent victim (Tuski was simply doing his job), 2. Significant Injuries (Tuski was left a paraplegic) 3. Clear Liability of defendant (drunk driver had a BAC of .12 several hours after the wreck) 4. Aggravating Facts (drunk driver fled the scene, denied drinking, refused a breathalyzer) 5. Unreasonable Denial of Settlement (based on 1-4, it was obvious the case was worth well in excess of the $1 million dollar limits available and should be settled quickly) 6. Forcing Victim to Litigate for Years instead of giving them the money the need to cope with the injuries. Put all these together and you have a signficant chance of holding an unreasonable insurance company responsible in a bad faith case. Hans Poppe

Three fen-phen Lawyers Indicted

hans@poppelawfirm.com (Blog Author)733 — Thu, 14 Jun 2007 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.

Why Are Health Care Costs Increasing?

hans@poppelawfirm.com (Blog Author)722 — Tue, 05 Jun 2007 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

Did The Flea's Case Really Settle Because of his Blog??

hans@poppelawfirm.com (Blog Author)721 — Tue, 05 Jun 2007 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

Larry Birkhead Counter Sues Former Attorney Debra Opri

hans@poppelawfirm.com (Blog Author)715 — Sun, 03 Jun 2007 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

Mythbuster- Jury Verdicts are Consistent and Conservative

hans@poppelawfirm.com (Blog Author)713 — Sat, 02 Jun 2007 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

The Flea's Identity is Revealed at Trial

hans@poppelawfirm.com (Blog Author)711 — Fri, 01 Jun 2007 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

Kentucky Super Lawyers - The First Issue

hans@poppelawfirm.com (Blog Author)709 — Wed, 30 May 2007 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

Is Your Doctor Blogging About YOU??

hans@poppelawfirm.com (Blog Author)706 — Mon, 28 May 2007 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

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

hans@poppelawfirm.com (Blog Author)705 — Mon, 28 May 2007 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

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

hans@poppelawfirm.com (Blog Author)699 — Wed, 23 May 2007 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 Cheers after Minnesota Consumers Denied Right to Sue

hans@poppelawfirm.com (Blog Author)698 — Wed, 23 May 2007 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

Preakness Winner, Curlin, Owned by Troubled Phen Fen Lawyers

hans@poppelawfirm.com (Blog Author)691 — Sat, 19 May 2007 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.

The Flea Outlines the Plaintiff's Complaint against him.

hans@poppelawfirm.com (Blog Author)688 — Wed, 16 May 2007 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

The Flea tells us what juries really care about.

hans@poppelawfirm.com (Blog Author)687 — Wed, 16 May 2007 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 Explains their Trial Strategy

hans@poppelawfirm.com (Blog Author)686 — Wed, 16 May 2007 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 is Back. Read about this Pediatrician's first day of trial.

hans@poppelawfirm.com (Blog Author)685 — Wed, 16 May 2007 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.

Medical Malpractice Defense Lawyers' Nightmare Client

hans@poppelawfirm.com (Blog Author)681 — Tue, 15 May 2007 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

Louisville Diet Doctor Being Investigated

hans@poppelawfirm.com (Blog Author)659 — Sat, 28 Apr 2007 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."

6th Circuit allows Newby lawsuit against McKenzie Mattingly to proceed

hans@poppelawfirm.com (Blog Author)643 — Tue, 17 Apr 2007 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

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

hans@poppelawfirm.com (Blog Author)637 — Wed, 11 Apr 2007 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.

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

hans@poppelawfirm.com (Blog Author)627 — Tue, 03 Apr 2007 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/

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

hans@poppelawfirm.com (Blog Author)619 — Sun, 01 Apr 2007 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

Two Big Law Firms in Big Trouble for Legal Malpractice

hans@poppelawfirm.com (Blog Author)618 — Sat, 31 Mar 2007 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.

Keeping Politics out of the Courtroom

hans@poppelawfirm.com (Blog Author)609 — Wed, 28 Mar 2007 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.

CSX cited for 199 safety violations

hans@poppelawfirm.com (Blog Author)608 — Wed, 28 Mar 2007 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.

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

hans@poppelawfirm.com (Blog Author)592 — Fri, 16 Mar 2007 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.

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

hans@poppelawfirm.com (Blog Author)568 — Thu, 01 Mar 2007 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

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

hans@poppelawfirm.com (Blog Author)567 — Thu, 01 Mar 2007 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

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

hans@poppelawfirm.com (Blog Author)565 — Thu, 01 Mar 2007 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

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

hans@poppelawfirm.com (Blog Author)564 — Tue, 27 Feb 2007 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

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

hans@poppelawfirm.com (Blog Author)560 — Mon, 26 Feb 2007 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

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

hans@poppelawfirm.com (Blog Author)548 — Sun, 18 Feb 2007 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

Are Lawyer Blogs Speech or advertisements?

hans@poppelawfirm.com (Blog Author)547 — Sun, 18 Feb 2007 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

Unethical Fen-Phen Lawyers?

hans@poppelawfirm.com (Blog Author)535 — Sun, 11 Feb 2007 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.

hans@poppelawfirm.com (Blog Author)536 — Sun, 11 Feb 2007 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

Why Medical Malpractice Caps Don't Work

hans@poppelawfirm.com (Blog Author)534 — Sat, 10 Feb 2007 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

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

hans@poppelawfirm.com (Blog Author)532 — Thu, 08 Feb 2007 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.

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

hans@poppelawfirm.com (Blog Author)521 — Thu, 01 Feb 2007 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

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

hans@poppelawfirm.com (Blog Author)520 — Wed, 31 Jan 2007 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

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

hans@poppelawfirm.com (Blog Author)519 — Tue, 30 Jan 2007 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

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

hans@poppelawfirm.com (Blog Author)504 — Wed, 24 Jan 2007 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."

Are blacks underrepresented on Jefferson County juries?

hans@poppelawfirm.com (Blog Author)503 — Tue, 23 Jan 2007 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.

Whistelblower case against MSD started Tuesday.

hans@poppelawfirm.com (Blog Author)489 — Wed, 17 Jan 2007 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.

hans@poppelawfirm.com (Blog Author)490 — Wed, 17 Jan 2007 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.

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

hans@poppelawfirm.com (Blog Author)484 — Mon, 15 Jan 2007 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

hans@poppelawfirm.com (Blog Author)485 — Mon, 15 Jan 2007 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

Kentucky's Senior Judge Program sparks many objections

hans@poppelawfirm.com (Blog Author)479 — Sun, 14 Jan 2007 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

hans@poppelawfirm.com (Blog Author)480 — Sun, 14 Jan 2007 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

Infamous Local Lawyer Resigns

hans@poppelawfirm.com (Blog Author)472 — Tue, 09 Jan 2007 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

hans@poppelawfirm.com (Blog Author)473 — Tue, 09 Jan 2007 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:

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

blog@www.poppelawfirm.com (News Author)8908 — 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

blog@www.poppelawfirm.com (News Author)8886 — 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.

Jury Award's Poppe Law Firm Client $5.1 Million

blog@www.poppelawfirm.com (News Author)6316 — 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.

Kentuckians for Nursing Home Reform Invite Hans to Speak at Louisville Event

blog@www.poppelawfirm.com (News Author)5681 — Sat, 13 Sep 2008 08:00:00 EST

On September, 28, 2008 2:00 pm at Beargrass Christian Church Kentuckians for Nursing Home Reform is having a free Question & Answer Session to address issues surrounding nursing homes and improving care. Hans will be speaking along with IMELDA PFISTER, the Nursing home ombudsman for the Louisville area and BETTY JO BRANHAM, who is from the state Office of the Inspector General, the agency that inspects nursing homes to determine if they are providing quality care. Please join us and have your questions about nursing homes answered.
Hans

Kentucky's Poppe Law Firm Files Accounting Malpractice Complaint Against Major Michigan Accounting Firm

blog@www.poppelawfirm.com (News Author)4308 — Thu, 21 Feb 2008 08:00:00 EST

Detroit Accounting Firm Named in Lawsuit

Involving Alleged Ponzi Scheme

The Investment News reports that accounting firm of Doeren Mayhew & Company was named in a lawsuit filed in Oakland County, Michigan, in connection with a highly publicized multi-million dollar alleged ponzi scheme using partnerships, many purported to earn revenues from telephone usage in Las Vegas hotels. The central figure reported as the mastermind of such investments was Ed May who, along with other individuals and firms, is the subject of several investigations including by the U.S. Securities and Exchange Commission. The Oakland Press also picked up on the story.

The lawsuit was filed on behalf of investors jointly by three law firms: Sheldon Miller & Associates, a premier Detroit area litigation firm, Hans Poppe of the Poppe Law Firm, which focuses on professional negligence claims, inlcuding accounting malpractice claims, and Shepherd Smith & Edwards, LLP, a securities law firm that handles claims for investors nationwide.

The suit states allegations regarding Doeren Mayhew, including that the accounting firm was listed as the accounting firm of record for various partnership investments and that the firm and/or some of its agents and directors were involved with the ongoing business affairs of the partnerships and engaged into direct and indirect communications with investors which misled them regarding these investments.

The law firm of Shepherd, Smith & Edwards also represents a number of individuals and other investors claiming large losses, many in their retirement accounts, after investing into these partnerships. This law firm has also filed claims for misrepresentation and unsuitability in securities arbitrations against a former stockbroker who sold these and other investments to his clients.

The law firms currently seek additional information, documents and other potential evidence regarding these investments, as well as any written or oral communications which may have occurred with the parties to the lawsuit or arbitration claims. Persons are asked to contact Thomas Ruiz or Kirk Smith at 800-259-9010 or via e-mail to truiz@sselaw.com. All such calls and contact will be treated as confidential in nature.

Hans Poppe Interviewed by WHAS 11 News about Plastic Surgery Medical Malpractice

blog@www.poppelawfirm.com (News Author)3746 — Wed, 28 Nov 2007 08:00:00 EST

The high price of perfection

11:14 AM EST on Wednesday, November 28, 2007

? VIDEO: Nip and tuck regrets
? Federation of State Medical Boards

LOUISVILLE, Ky. – We live in a time when you can get liposuction during your lunch hour and go to parties for botox injections. Cosmetics surgery is so commonplace we may spend more time shopping for a car than looking into the credentials of our surgeons.

Everyone wants everyone for nothing and nothing less than perfection please.

But that quest for perfection highlighted in the headlines can sometimes have devastating results.

It did for Donda West, the mother of hip-hop star Kanye West. She died after surgery performed by Dr. Jan Adams, a non-board certified surgeon.

One woman's abdomen will never be normal again because the doctor who operated on her was not able to perform the type of surgery he told her he could, a tummy tuck. Her attorney, Hans Poppe, says that her settlement requires that she not speak publicly about her injuries. But she will never fully recover.

From terrible tummy tucks to lousy liposuction, Dr. Jerry O'Daniel now devotes 25 percent of his practice to reversing and reshaping cosmetic surgery mistakes.

O'Daniel would prefer patients not need his services to repair mistakes and he says you can avoid them. Everyone should insist on using a board-certified surgeon in the practice. They should ask to see pictures, talk to other patients and be aware that the length of the time you are under sedation increases your risks. Also, remember that when it comes to something as serious as surgery, it's not a good idea to cut corners.

If you want to check out your doctor, Poppe says you have to go down to the Jefferson County courthouse and check out county by county, because doctors may move around. Information about the complaint against Dr. Jan Adams was found on the Medical Board of California's website.

WHAS 11 News Interviews Hans about Medical Malpractice

blog@www.poppelawfirm.com (News Author)3734 — Sun, 25 Nov 2007 08:00:00 EST

Be sure to watch WHAS 11 News at 11:00 p.m., on Tuesday, November 27th when Kirby Adams interviews Hans about medical malpractice and plastic surgery. We'll post a link following the interview.

Balloon Valve May Replace Open Heart Surgery

blog@www.poppelawfirm.com (News Author)3682 — Sun, 04 Nov 2007 08:00:00 EST

Erectile Dysfunction Drugs Linked to Sudden Hearing Loss?

blog@www.poppelawfirm.com (News Author)3606 — Thu, 25 Oct 2007 08:00:00 EST

Hearing loss has been reported in few patients during clinical trials of Viagra, Cialis, and Levitra. No causal relationship has been demonstrated between the drug and sudden hearing loss, but the FDA believes there is a strong temporal relationship between the use of the drugs and sudden hearing loss. The FDA believes that this relationship is strong enough to warrant revisions to the product labeling.

Indiana Police Officer Killed When Semi Loses Wheels

blog@www.poppelawfirm.com (News Author)3562 — Fri, 12 Oct 2007 08:00:00 EST

The Shelbyville (Indiana) Police Department lost its' first-ever officer in the line of duty last week. Twenty more minutes and 51-year-old Sgt. Gary Henderson would have clocked out of his 9-hour patrol duty.

The 29-year veteran of the police force had responded to a call for back-up on Interstate 74 after the first officer pulled over a suspected stolen car with a driver and passenger inside.

Passing Semi Lost Wheels and Tires at Highway Speed

Henderson was taking a picture of the suspect vehicle on the shoulder of the highway when a tractor-trailer drove by and lost two rear wheels and tires, which swept into the path of Henderson.

Shelbyville Police said two juveniles -- ages 13 and 14 - who sneaked out of the Gibault Group Home for Boys in - were inside their vehicle when Henderson was struck.

"Sgt. Henderson was a fine police officer," said Police Chief Bill Elliott. "He was a dedicated public servant and will be missed by everybody."

According to Elliott, the driver of the passing semi trailer was hauling 2,000 pounds of Styrofoam packing peanuts from Chicago to Kentucky. The driver told police he moved into the left lane when he saw the police cars on the right shoulder.

Truck Seemingly Had Passed Safety Inspection

The driver said he had no idea the two wheels had fallen off his rig. During vehicle pre-inspection earlier that day, the driver said didn't notice anything wrong except for a "power-block issue" he said was, "no big deal."

Authorities said it is unlikely he will face charges but will investigate the trucking company's safety and maintenance records. The vehicle reportedly had passed its most recent safety inspection.

Henderson began his law enforcement career in Shelbyville as a parking enforcement officer and dispatcher in 1978. He later served as a narcotics officer, criminal detective and deputy police chief. "Everybody knew him and respected him," Elliott said. "It's just a terrible loss."

Hans Poppe in the News about the McDonald's Verdict

blog@www.poppelawfirm.com (News Author)3521 — Fri, 05 Oct 2007 08:00:00 EST

Hans' Interview with WHAS 11 News on the McDonald's Trial

blog@www.poppelawfirm.com (News Author)3514 — Fri, 05 Oct 2007 08:00:00 EST

Louise Ogborn is represented by attorney Ann Oldfather in her $200 million dollar lawsuit against McDonalds. Recently, WHAS 11 News sat down with me to discuss what decisions the jury would have to make.

Kentucky Officials Sue Oxycontin Makers

blog@www.poppelawfirm.com (News Author)3512 — Fri, 05 Oct 2007 08:00:00 EST

Unequal Nursing Home Treatment for African Americans

blog@www.poppelawfirm.com (News Author)3422 — Fri, 21 Sep 2007 08:00:00 EST

Pair Arrested for Illegal Surgeries

blog@www.poppelawfirm.com (News Author)3359 — Fri, 07 Sep 2007 08:00:00 EST

Ha Nguyen and Zbigniew Makowski have been arrested on suspicion of practicing medicine without a license and child endangerment. The two were performing illegal surgeries from their own home, which was filled with drugs and syringes.

One woman recieved a tummy tuck and facelift which has left her with three-inch scars next to each ear and a fifteen inch scar across her stomach.

Nguyen, who has never been licensed in California as a physician performed the surgeries while Makowski transported the patients and helped to clean the wounds.

Nguyen was on welfare at the time of arrest, but was also earning at least $500 a day from the surgery practice.

Buyers of Condo-Hotel Units on Florida Keys Claim Securites Fraud

blog@www.poppelawfirm.com (News Author)3293 — Thu, 30 Aug 2007 08:00:00 EST

Like recent, new-home buyers, investors are feeling the financial pinch of a dormant housing market.

Suit Says Some Rooms Were Dilapidated

Twenty condominium buyers in a Florida Keys hotel claim the builder, Cay Clubs Resorts & Marinas of Clearwater, Fla. deceived them into believing their properties would appreciate after comprehensive renovations to a "world-class resort." What buyers in the Sombrero Cay Club Project received, according to the suit, were dilapidated rooms with a new coat of paint.

'The plaintiffs were assured,' the suit says, 'prices would increase dramatically as [buyers] were contracting at a bargain price.' But one pair of buyers said a vacation rental firm declared their unit ``unrentable.'

Appraisers Accused of Inflating Prices

More importantly, the suit accuses appraisal companies working with Cay Clubs of inflated estimates of the units' value. This was done, the suit stated, by basing those calculations on Cheeca Lodge, an upscale resort 33 miles away.

Cay Clubs may face bankruptcy if it can't refinance $74 million in loans due this fall. It owes $10 million in late lease payments to buyers and has missed $1 million in loan payments this year, according to regulators. By promoting the Sombrero condominiums as profit-generating investments, the suit says, Cay Clubs violated state security laws. Security laws bar developers from selling real estate as if it gave buyers a stake in a cash-producing business. That makes condominium hotels – prime vacation spots - a target for this type of lawsuit in a deflated real estate market, according to Andrew Robins, a lawyer specializing in condominium hotels.

Plaintiff's attorney Howard Behar said his clients want a judge to negate their sales contracts and refund money they've lost. The suit for unspecified damages lists 20 buyers in the Sombrero project who paid between $549,000 and $808,000 for units. Cay Clubs did agree to rent back the units for one year at 8 percent of the purchase price but buyers said payments were late. The plaintiffs 'did not intend to ever reside in the condominiums and only intended to sell their units' once the renovation finished, according to the suit.

http://www.miamiherald.com/business/story/218470.html

Painkiller Prescriptions up 90% from 1997-2005

blog@www.poppelawfirm.com (News Author)3257 — Fri, 24 Aug 2007 08:00:00 EST

Vioxx Ills Start Sooner Than Thought

blog@www.poppelawfirm.com (News Author)3166 — Sun, 05 Aug 2007 08:00:00 EST

Nursing Home Residents at Risk for Peer Abuse

blog@www.poppelawfirm.com (News Author)3053 — Mon, 23 Jul 2007 08:00:00 EST

Bowling Green Bus Accident Kills Driver, Injures 66

blog@www.poppelawfirm.com (News Author)2962 — Sun, 01 Jul 2007 08:00:00 EST

Two Louisville Pedestrians Struck By a Car Early Sunday Morning

blog@www.poppelawfirm.com (News Author)2903 — Sun, 24 Jun 2007 08:00:00 EST

The Courier-Journal Two pedestrians were injured, one seriously, when they were struck by a vehicle early today on Preston Highway. The incident happened at about 2:40 a.m. outside the Jambalaya club at 6201 Preston Highway, south of Indian Trail. Alicia Smiley, a spokeswoman for Louisville Metro Police, said the driver of the vehicle, Jose Miguel, had been involved in a fight with two other men before he struck them with his vehicle. She said all three man were taken to the hospital. Miguel's age and residence were unknown. He was released from the hospital at about 3 p.m. Smiley said he was arrested, but she didn't have details about the charges he faces. The extent of the injuries to the other two men were unknown this afternoon, but Smiley said the department's homicide unit was not involved in the case. The incident remains under investigation.

Three Crashes Involving Eight Vehicles Snarls Sunday Traffic in Louisville.

blog@www.poppelawfirm.com (News Author)2900 — Sun, 24 Jun 2007 08:00:00 EST

Crashes snarl downtown traffic on I-64, I-65 The Courier-Journal Police and emergency crews responded at about noon today to three crashes involving at least eight vehicles where Interstates 64 and 65 meet in downtown Louisville. A supervisor with MetroSafe Communications said there were no reported injuries, but that at least part of northbound I-65 was closed due to the wrecks. Parts of I-65 southbound in the area known as Spaghetti Junction were also affected by the crashes, the supervisor said. Most of I-64 westbound near downtown already was closed today due to construction. All lanes on I-65 in both directions were cleared as of 1:30 p.m.

West Virginia Supreme Court to Hear Challenge to Tort Reform

blog@www.poppelawfirm.com (News Author)2855 — Sun, 17 Jun 2007 08:00:00 EST

The West Virginia Supreme Court will hear a case in the fall that challenges a state tort reform law. The law requires the plaintiff to file a "certificate of merit" stating that other health professionals have reviewed the case and believe malpractice occurred. The plaintiff had consulted 12 urologists in this case. 10 refused to sign a certificate of merit against another doctor. The remaining two wanted $40,000 before they would sign anything.

80% of Hospitalized Kids Get Drugs Only Approved for Adults

blog@www.poppelawfirm.com (News Author)2813 — Sat, 09 Jun 2007 08:00:00 EST

Woman Sues Wal-Mart After Slipping on Wet Floor

blog@www.poppelawfirm.com (News Author)2768 — Sat, 02 Jun 2007 08:00:00 EST

Two years and repeated surgeries later, June and James Medema of Blue Grass, Iowa, filed suit against retailer Wal-Mart May 22, alleging negligence led to June Medema suffering permanent injuries in a June 13, 2005, fall at the Wal-Mart Super Center in Davenport, Iowa.

Vomit Alleged As Causing Slip & Fall

Medema allegedly slipped in a pool of vomit. The suit does not specify how the store was negligent. The person who had become sick in the store has not been identified. The Medemas are asking for at least $5,000 in damages.

John Simley, a spokesman for Wal-Mart, declined comment. "We haven't seen the suit and we can't comment on something we haven't seen," he said.

In the spring of 2007, attorney Michael K. Bush took out a classified advertisement in a Davenport newspaper seeking witnesses to the incident. June Medema allegedly suffered serious neck and upper back injuries and is disabled from work Bush said.

9.400 Lawsuits Pending vs. Retailer

Wal-Mart employs 1.8 million people in 3,900 stores in the United States and 2,700 employees in other countries. The first store opened in Rogers, Arkansas in 1962. Founded by Sam Walton in 1962 and incorporated seven years later, Wal-Mart is now the world's largest retail store.

The Medema's suit is one of 9,400 pending against the retail giant in the U.S. court system. Wal-Mart ranks behind only the federal government as the most sued entity in the world. Suits include against Wal-Mart shoppers slipping on recently cleaned floors as well as sex discrimination claims from its employees.

Doctors Busted in $30 Million Insurance Scam

blog@www.poppelawfirm.com (News Author)2691 — Sat, 19 May 2007 08:00:00 EST

Three doctors were arrested Wednesday for insurance fraud. The doctors had performed hundreds of unnecessary procedures on patients and billed insurance companies over $30 million. The patients would receive money or low-cost cosmetic procedures in return for their participation in the scam.

Jewish Hospital sues the Attorneys who filed the MRSA cases.

blog@www.poppelawfirm.com (News Author)2680 — Wed, 16 May 2007 08:00:00 EST

Jewish Hospital has sued Joe White and Michael O'Connell for filing 80+ lawsuits alleging the hospital failed to keep the hospital clean, leading to MRSA infections.

Kentucky Ranks 33rd In Fairness of Litigation Poll

blog@www.poppelawfirm.com (News Author)2626 — Mon, 07 May 2007 08:00:00 EST

Kentucky moved up one spot from it's 2006 rankings in a Harris Poll that asks citizens how fair they believe the state's litigation process is.

Kentucky Man Dies From Falling Out Window While in Nursing Home

blog@www.poppelawfirm.com (News Author)2601 — Mon, 30 Apr 2007 08:00:00 EST

State Farm CEO gets 82% Raise?

blog@www.poppelawfirm.com (News Author)2539 — Tue, 24 Apr 2007 08:00:00 EST

Injured Soldiers Can't Sue Government for Malpractice

blog@www.poppelawfirm.com (News Author)2511 — Sat, 14 Apr 2007 08:00:00 EST

Kentucky Court of Appeals Hears Oral Argument on Important Kentucky Bad Faith Case

blog@www.poppelawfirm.com (News Author)2502 — Wed, 11 Apr 2007 08:00:00 EST

New Study in Illinois Shows Jury Verdict Are NOT Driving Rising Malpractice Premiums

blog@www.poppelawfirm.com (News Author)2472 — Tue, 03 Apr 2007 08:00:00 EST

600 Lawyer Firm to Shut Down After Admitting it Promoted Tax Fraud

blog@www.poppelawfirm.com (News Author)2467 — Sat, 31 Mar 2007 08:00:00 EST

Another Firm in Trouble for Diet Drug Settlement

blog@www.poppelawfirm.com (News Author)2466 — Sat, 31 Mar 2007 08:00:00 EST

CSX Railroad cited for 199 safety violations.

blog@www.poppelawfirm.com (News Author)2424 — Wed, 28 Mar 2007 08:00:00 EST

Elder care abuse in Louisville

blog@www.poppelawfirm.com (News Author)2409 — Mon, 26 Mar 2007 08:00:00 EST

Are you comforted by reports of children caring for their elderly parents at home? Are you relieved these dependent elders don't have to endure the sterile, marginal care in a nursing home? Readers of the Hans Poppe Law Firm website should think again about these "home sweet home" scenarios. It could protect your loved one from and suffering behind the veil of personal family care.

Considering elder abuse is more likely to occur at the hands of a family member than outside the home by a nurse, nurse's aide or nursing facility staffer, according to the National Center for Elder Abuse in Washington, D.C.

And the abuse is happening in Louisville.

Neglect case "hits home"

In January of this year, WAVE-TV in Louisville reported the arrest of Kenneth Kurz, who was charged with neglect of his mother. When investigating authorities arrived at the Kurz residence, they found Susanna Kurz lying in her own waste.

WAVE reported Pam Cherry of Louisville's Adult Protective Services receives 180-200 calls a month regarding individuals who have been abused, neglected or exploited. "Our cases seem to go up every year as people learn about elder abuse," Cherry said.

Watch for warning signals

The public can be tipped on elder abuse by being vigilant in their neighborhood. Simply getting to know your neighbors and their lifestyle habits is a safeguard. "Maybe the yard starts looking non-manicured and maybe that person had a beautiful yard before that," Cherry said.

Amanda Frederick, Louisville Metro Police Detective, said that knowing your neighbors makes it more likely you'll notice changes for the worse, say in a house's appearance. Frederick said many times, it's a family member who is the abuser.

"Many of them (abusers) are unemployed or on disability or have very irregular employment," Frederick said. "A lot of our perpetrators are grown children who still live at home. You go home and you think about it, particularly ones where the family is familiar to your own or one of the victims actually looked like my grandmother – that was a real hard case for me, personally," she added.

If you have noticed a suspicious change in the home or grounds of an elder in your neighborhood, it is time to take action. Your first telephone call should be to the Louisville Adult Protective Services hotline at 502.595-4803. The office is at 908 W. Broadway, #6W. To protect the civil rights of a family member, friend or neighbor, take charge and call the attorneys at the Poppe Law Firm at 502.895.3400.

Kentucky Comair Widows Push for Change in Loss of Consortium Law.

blog@www.poppelawfirm.com (News Author)2621 — Sun, 11 Mar 2007 08:00:00 EST

Sarah King Fortney: When Comair Flight 5191 fell from the sky, it took a life of great potential in my husband, C.W. Fortney. C.W. was a father, a husband, a son, a friend and my hero. My life, as I knew it, was taken from me that August morning, never to return. My reason for being here today goes deeper and is far greater than a desire to be compensated for the loss of my husband. I am here to request that our government recognize marriage as something more than a series of bank deposits. Insisting that the loss of a loved one can be compensated exclusively by that person's earning potential trivializes the very form of emotional attachment that we claim marriage represents. The State of Kentucky currently restricts damages in wrongful death and negligence cases such as mine to lost wages. Our current law says that you're only worth as much as your paycheck. Make no mistake, that's what it says. By limiting damages in cases such as these, our state is putting a clear and direct price tag on human emotions and human life. Opponents of this bill will tell you that this is tort issue, that this is about frivolous lawsuits. They have lost their focus on families. This is a deliberate attempt on behalf of the Republican Senate leadership to confuse family values with greed. Don't fall for it. In the chamber behind me, our elected representatives are debating the definition of marriage. They're publicly stating their opinion that marriage is the bedrock of society and defending the sanctity of marriage to further their own political agenda. How can they on the one hand, glorify marriage as our most sacred institution while simultaneously denouncing the emotions on which that foundation is built? That is the height of hypocrisy. Forty-six other states in our union have recognized the issue in front of you today, with no ill effect on their local economy. However, by remaining the smallest of minorities, Kentucky is turning its back on its citizens and providing a safe haven for inept and negligent businesses to thrive, a place where marriage certificates mean nothing more than tax breaks. Let me say this: I'm not a lawyer. I'm not being advised by my lawyer on this issue. I am a widow. I am a single parent. I'm an advocate for anyone suffering because they were robbed of their spouse due to ineptitude and/or negligence. Should that ever happen to you or your family. Should you ever be forced into that corner. Should you ever feel the pain that I've felt, I can only hope you won't be subjected to the same slap in the face from our government that I have. Kathy Ryan: When someone fails to adhere to a baseline standard of care, or sells a dangerous product, or creates a dangerous environment, or behaves in a in a reckless or criminal way and such behavior causes the death of someone, surely we can all agree, as we have agreed in the law for centuries, that the wrongdoer must be held accountable in some meaningful way to their innocent victim. We, if we are good parents, teach this basic principle of accountability to our children. Kentucky has long had a statute that says, "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 person." The courts have interpreted the loss of consortium statute as applying only in cases of personal injury. So if your spouse is negligently injured, your spouse has a cause of action for his injury and you also have a cause of action for the damage you suffer as the result of no longer having a healthy husband. But such is not the case if, instead of suffering only injury, your spouse is instead negligently killed. All that we ask in House Bill 403 is fairness and justice through the reasonable and continued opportunity to hold wrongdoers accountable for all of the damage which they cause. Compensation of the deceased person's estate does not compensate a widow or widower for the destruction of their marriage - the unique hardships, pain and grief caused the surviving spouse by the undeserving death of their life partner. Passing HB 403 will not be a windfall for anyone. It will merely provide innocent citizens an opportunity, difficult as it is to exercise in practice, to force a wrongdoer to value marriage and family in our society. And it will avoid what are otherwise vastly unfair results for spouses of victims who happen not to be the primary wage-earner in a marriage. Those of us who have suffered the immediate death of our spouse have damages separate and distinct to us that do not include, nor overlap with, the loss of our spouses' "power to earn money," funeral expenses, or pain and suffering. Surely we can universally recognize that, as human beings, the best things in life mean little when you have no one with whom to share them. There is much more to the shared life that a marriage is, and we all know it. Jurors know it too, and their life experience guides them in balancing the results. Kentucky is far behind the trend in this area. We are one of only four states in the Union that has not recognized the right of a spouse to recover for the lost services, love and affection of a person wrongfully killed. Forty-six other states took this step long ago. It is past time for Kentucky to do the same. To that end, and only because I mistakenly thought that maybe, just maybe with the publicity of Comair 5191 and the second degree of separation effect that it had on many citizens of this commonwealth, that we could prevail over the powerful forces which would predictably oppose us. We thought that all we were doing was handing a golden opportunity to the legislature to fix a horrid, unjustifiable inconsistency in current case law. The House of Representatives understood this and overwhelmingly passed House Bill 403 on a vote of 93 in favor, only seven opposed. But in the Senate our efforts have been met with charges of greed and the response from Senate leadership that our bill does not fit into their tort reform agenda, therefore it will not be pushed onto the Senate floor for a vote. It is most unfortunate that we have been personally attacked in this way and have had to encounter a severe lack of empathy for human victims in favor of sympathy for commercial enterprise. It has, to say the least, been a disappointment to face people who don't seem capable of understanding what it means to have your world ended just because your husband had the misfortune of being in the wrong place at the wrong time. It has also been very hurtful to face people who have no understanding of the value of trial attorneys who, in my humble opinion, are some of the only remaining heroes of our society, willing to risk and invest personally in the causes of innocent victims who would otherwise be powerless to achieve any accountability for those who have negligently or criminally harmed them. House Bill 403 is about valuing humanity, as fostered in marriage and family, over the interests of commercial enterprise. We ask the Senate leadership to immediately reconsider its position and permit House Bill 403 to come to the Senate floor for a vote right away.

Louisville Rubbertown Residents Reach Settlement With Rubbertown Plant.

blog@www.poppelawfirm.com (News Author)2346 — Tue, 06 Mar 2007 08:00:00 EST

Tort Reform Doesn't Work in Florida.

blog@www.poppelawfirm.com (News Author)2314 — Thu, 01 Mar 2007 08:00:00 EST

Louisville Nursing Home Director Faces More Criminal Charges After Remains are Found.

blog@www.poppelawfirm.com (News Author)2312 — Thu, 01 Mar 2007 08:00:00 EST

Louisville Based Kindred Pledges to Improve Care

blog@www.poppelawfirm.com (News Author)2311 — Thu, 01 Mar 2007 08:00:00 EST

New Options (and Risks) in Home Care for the Elderly

blog@www.poppelawfirm.com (News Author)2310 — Thu, 01 Mar 2007 08:00:00 EST

W.V. Supreme Court Limits Bad Faith Claims Against Insurers

blog@www.poppelawfirm.com (News Author)2259 — Tue, 27 Feb 2007 08:00:00 EST

Louisville Medical Malpractice Defense Lawyer In the Hot Seat.

blog@www.poppelawfirm.com (News Author)2258 — Mon, 26 Feb 2007 08:00:00 EST

Louisville Jury Determines U-Haul Dolly Defective and Awards $10 Million to Quadripalegic and her Family.

blog@www.poppelawfirm.com (News Author)2257 — Mon, 26 Feb 2007 08:00:00 EST

TN Judge Rejects Jury's Award of $29 Million Dollars in Punitve Damages Against a Nursing Home.

blog@www.poppelawfirm.com (News Author)2255 — Sun, 25 Feb 2007 08:00:00 EST

Doctor With 100 Suits Against Him Sues His Own Lawyers.

blog@www.poppelawfirm.com (News Author)2242 — Fri, 23 Feb 2007 08:00:00 EST

Notre Dame Coach's Medical Malpractice Case Declared a Mistrial

blog@www.poppelawfirm.com (News Author)2237 — Wed, 21 Feb 2007 08:00:00 EST

Giant Insurance Consulting Firm Explains Why Health Insurance Is So Expensive.

blog@www.poppelawfirm.com (News Author)2223 — Sun, 18 Feb 2007 08:00:00 EST

Rhode Island Considers Whether Lawyer Blogs are Speech or Advertisements

blog@www.poppelawfirm.com (News Author)2222 — Sun, 18 Feb 2007 08:00:00 EST

Semi-wreck on the Outer Loop

blog@www.poppelawfirm.com (News Author)2197 — Sun, 11 Feb 2007 08:00:00 EST

First Louisiana Katrina Case to go to Trial Monday

blog@www.poppelawfirm.com (News Author)2196 — Sun, 11 Feb 2007 08:00:00 EST

Auto insurers Play Hardball in Minor Crash Claims

blog@www.poppelawfirm.com (News Author)2195 — Sun, 11 Feb 2007 08:00:00 EST

Fen-Phen lawyers Allegedly Misappropriated More Than Orginally Thought

blog@www.poppelawfirm.com (News Author)2194 — Sun, 11 Feb 2007 08:00:00 EST

Could saying "I'm Sorry" Keep People From Suing Doctors

blog@www.poppelawfirm.com (News Author)2190 — Sat, 10 Feb 2007 08:00:00 EST

Two Florida Nurses Arrested for Not Giving Residents Medicine.

blog@www.poppelawfirm.com (News Author)2189 — Sat, 10 Feb 2007 08:00:00 EST

New Orleans Jury Awards Former Death-Row Inmate $14 Million

blog@www.poppelawfirm.com (News Author)2188 — Sat, 10 Feb 2007 08:00:00 EST

Former nursing home administrator convicted of manslaughter for resident's death.

blog@www.poppelawfirm.com (News Author)2187 — Fri, 09 Feb 2007 08:00:00 EST

Wrongly Convcicted Louisville Man Settles for 3.9 Million

blog@www.poppelawfirm.com (News Author)2172 — Thu, 08 Feb 2007 08:00:00 EST

New York Times Editorial on the vanishing lawsuit

blog@www.poppelawfirm.com (News Author)2160 — Mon, 05 Feb 2007 08:00:00 EST

Editorial Observer They Say We Have Too Many Lawsuits? Tell It to Jack Cline By ADAM COHEN Published: January 14, 2007 Birmingham, Ala. Jack Cline is in a hospital here fighting for his life, stricken by leukemia that he says he got from exposure to benzene at his factory job. In most states, he would be able to sue the companies that made the benzene. But Alabama's all-Republican, wildly pro-business Supreme Court threw out his case. In a ruling that would have done Kafka proud, the court held that there was never a valid time for Mr. Cline to sue. If he had sued when he was exposed to the benzene, it would have been too early. Alabama law requires people exposed to dangerous chemicals to wait until a "manifest" injury develops. But when his leukemia developed years later, it was too late. Alabama's statute of limitations requires that suits be brought within two years of exposure. Mr. Cline, who says God has kept him alive so he can challenge the unfairness of Alabama's law, told his lawyer, Robert Palmer, to keep fighting. Mr. Palmer started a statewide petition drive, wrote a flurry of op-ed pieces and asked the court to reconsider. In an extraordinary move, it reopened the case and heard new arguments last spring. Big business and its allies are loudly promoting "tort reform" by arguing that America is drowning in frivolous lawsuits. They are winning the public relations battle. Everyone knows the story of the woman who sued McDonald's because she was burned by hot coffee. But few people know of the Jack Clines — and there are many of them — who have been denied their day in court. Corporate America — with its large contributions to political and judicial candidates, and its top-dollar lobbyists — has had remarkable success persuading legislatures and courts to erode the bedrock principle of civil law: when people are injured, they are entitled to sue for damages. At the top of industry's list of tactics is immunity — the rather brazen notion that companies should be shielded from lawsuits no matter how negligently or dishonestly they act. Gun makers and dealers, notoriously, persuaded Congress in 2005 to give them immunity when their guns are used to maim and kill. Industries are also winning immunity at the state level, and attracting far less attention. Pharmaceutical companies pushed through a law in Michigan protecting them when their drugs injure or kill people, as long as the drugs were approved by the Food and Drug Administration. There is no reason F.D.A. approval, a deeply flawed process, should be a shield. When corporations do end up in court, they have lowered the stakes substantially by undermining punitive damages, which have long been one of the main ways that society deters people from unreasonably putting others at risk. The United States Supreme Court struck a major blow against punitive damages a decade ago, ruling that it was unconstitutional for a jury to award $2 million in punitive damages against an auto dealer that knowingly sold a damaged, repainted BMW as new. Lower federal court judges, many of whom have been screened by the Bush administration for pro-business sympathies, and state court judges, many of whose campaigns were bankrolled by big business, are eagerly joining in. So are state legislatures. Last month Ohio's legislature voted to cap punitive damages in many cases against paint companies — which have been accused of selling lead-based paint that causes retardation in children — at a paltry $5,000. Perhaps the most insidious tactic for slamming the courthouse door on injured people is the stealth use of "pre-emption." When federal and state laws conflict, the federal law pre-empts, or invalidates, the state law. The Bush administration is taking advantage of this principle by issuing weak regulations in a wide range of areas to wipe out stronger state-law protections. When people try to sue, they may find that their legal rights have been swept away. Among the areas the administration has focused on are automobile roof crushes and mattress flammability. These incursions on the right to sue, taken together, are a serious assault on justice. In the most extreme cases, they may also be unconstitutional. Mr. Cline's lawyer, Mr. Palmer, argued that preventing him from ever suing denied him his rights under the Alabama Constitution to seek a legal remedy for his injuries. Mr. Palmer was encouraged when the Alabama Supreme Court reopened the case. He also saw it as a good sign when it scheduled oral arguments for a special public session on a law school campus, an indication it considered the case particularly significant. The arguments went well. "Questions asked by several justices indicated they were troubled by the legal Catch-22," The Birmingham News reported. The court ruled this month. It affirmed the dismissal of Mr. Cline's case by a 5-to-4 vote. If Mr. Cline wanted to challenge the unfairness of the rules, it said, he would have to take it up with the State Legislature — a body every bit as pro-business as the Alabama Supreme Court. Mr. Palmer intends to take the case to the United States Supreme Court. In the meantime, Mr. Cline can take some small comfort in the close vote. Four Alabama justices, at least, would not accept a legal system that told people like him that "no matter when" they "file the action, it is either too soon or too late."

First lawsuit filed over New York's new Attorney Advertising Rules

blog@www.poppelawfirm.com (News Author)2149 — Fri, 02 Feb 2007 08:00:00 EST

Feb. 1, 2007 New Lawyer Advertising Rules in New York Violate Free Speech, Impede Internet Communications and Nonprofit Legal Services Public Citizen Lawsuit Seeks Injunction Against Unconstitutional Rules WASHINGTON, D.C. – New rules governing lawyer advertising set to go into effect in New York violate free speech and would impose anti-consumer restrictions on lawyers' advertising and Internet communications, according to a lawsuit filed today by Public Citizen and a New York law firm. The lawsuit seeks to prevent enforcement of New York's attorney advertising rules that are scheduled to take effect on Feb. 1. The new guidelines are part of a revision of the rules contained in New York's Code of Professional Responsibility for lawyers, which is designed to protect consumers by prohibiting false and misleading lawyer advertisements. The rules were released on Jan. 4 by the presiding justices of the four divisions of New York's appellate courts. The lawsuit contends that the rules' broad language unconstitutionally prohibits truthful communication of information about legal services to New York consumers. There is also no exception for solicitation of potential clients for pro bono representation, and thus the rules would apply to brochures and other materials released by nonprofit legal groups that provide no-fee legal services on civil justice issues. According to the lawsuit, a 30-day waiting period in the rules on communications to individuals and their families who have been involved in potential incidents of personal injury or wrongful death would prevent civil justice groups from adequately defending citizens' rights. For example, the waiting period would prevent nonprofit legal organizations from contacting individuals at political demonstrations who have been physically harmed by police officers to inform them about their rights and the availability of pro bono legal representation. "The right to engage in truthful legal advertising is not only a matter of free speech, but it also encourages competition in the marketplace for legal services," said Greg Beck, an attorney for Public Citizen. "It's also important for educating citizens about their rights and making it easier for consumers to find the appropriate legal representation." The new rules would extend to communication on the Internet, including Web sites and e-mails. They would require law practices and nonprofit organizations to label e-mailed solicitations "ATTORNEY ADVERTISING" and save copies of the e-mail for a year, even if the e-mail offers free legal representation. Law firms would also have to label their Web sites as advertising and save a copy of the Web site at least every 90 days. "While other states have debated limits on lawyers' advertising, the New York rules go further than any other state in imposing burdensome restrictions on legal free speech," said Beck. "New York has also taken the lead in interfering with and regulating legal Internet communications." Public Citizen represents its members and attorney James L. Alexander. To read more about this issue, visit the Consumer Law & Policy Blog, co-sponsored by Public Citizen's Consumer Justice Project.

New Ethics Rules in Rochester NY limit the "Heavy Hitter" ads.

blog@www.poppelawfirm.com (News Author)2146 — Thu, 01 Feb 2007 08:00:00 EST

New ethics rules for lawyers: Tone down ads Nicknames out, disclaimers in starting today Michael Zeigler Staff writer Post Comment (February 1, 2007) — Eugene F. Pigott Jr. used to wince when he saw lawyers tout themselves in television commercials as "The Heavy Hitters" or loudly proclaim they could deliver "every single dime" to accident victims. "People don't need a circus monkey telling them, 'I can do a better job than the last circus monkey you might have seen,'" said Pigott, associate judge of the state Court of Appeals, New York's highest court. So last summer Pigott, then presiding justice of the Rochester-based Appellate Division of state Supreme Court, joined the top judges of the other three appellate divisions to propose new ethical rules to protect consumers from lawyers' ads that are misleading, inappropriate or overly aggressive. A revised set of the rules takes effect today. Although they're less sweeping and restrictive than the original proposal, they'll still change the way lawyers advertise in broadcast and print media and on the Internet. Nicknames are out, such as the moniker of "The Hammer" used by former Rochester personal-injury lawyer James J. Shapiro, who was suspended in 2004 for ethical violations. Ads are prohibited if they show lawyers in situations unrelated to their professional competence — such as ones broadcast by the Syracuse firm of Alexander & Catalano, who portrayed their name partners as baseball players tagged "The Heavy Hitters." Ads must include disclaimers that prior results, such as multimillion-dollar verdicts or settlements, don't guarantee results in future cases. Although actors can be used if the ads disclose that the actors are being paid, ads can't include testimonials from clients whose cases are pending. Lawyers can use pop-up ads on their own Web pages, but not on other Web sites. Rochester lawyer Michael R. Wolford, who led an effort to monitor lawyers' ads in 2005 as president of the Monroe County Bar Association, said he hopes the new rules will restore dignity to lawyers' ads. "I don't want to build up anyone's hopes or expectations that this will change the climate significantly, but it's a step in the right direction," Wolford said. "Hopefully, the most offensive ads will be dropped." But the new rules will face an immediate challenge. Lawyer James Alexander of Alexander & Catalano said his firm would join with the Public Citizen Litigation Group of Washington, D.C., and the New York Civil Liberties Union to claim in a lawsuit that the rules impinge on lawyers' First Amendment rights. "We still feel that some of these rules are vague and contradictory and difficult to enforce," said Alexander, whose firm advertises heavily in Rochester. "We believe it has to be decided whether this violates our free speech right. We do intend to file a lawsuit in federal court very shortly to get a determination that everyone can live with and (that) will be the final word," Alexander said. In the meantime, he said his firm has changed its advertising to abide by the rules and omit references to "The Heavy Hitters." Lawyers across the nation have been allowed to advertise since 1977, when the U.S. Supreme Court overturned restrictions on lawyers' ads in newspapers. Follow-up decisions opened advertising for lawyers on the airwaves, in the Yellow Pages and in cyberspace. Every state regulates its own lawyers ads. In New York, the Lawyers' Code of Professional Responsibility restricts ads that are false, deceptive or misleading. Alleged violations of the code are referred to the Appellate Division and its Attorney Grievance Committee. But last year, court administrators and the legal community cooperated in an unprecedented effort to change the Code of Responsibility to rein in ads that administrators believed have discredited the legal profession. In a large part, the new rules are a legacy of Shapiro, whose take-no-prisoners TV ads in the 1990s featured explosions, falling bodies and car crashes. A frequent target of disciplinary rules, Shapiro called himself "The Hammer" and promised to make those who injured his clients pay "every dime I can." In a 1996 ruling, the Appellate Division said Shapiro's ads were "offensive and degrading to the legal profession" but found they were "constitutionally protected hyperbole." Eight years later, however, the court suspended Shapiro for one year after finding he "grossly exaggerated and falsely depicted his skill" and improperly solicited business from a comatose accident victim. Shapiro, who admitted that he had never tried a case in court and frequently farmed out his work to other lawyers, sold his business, lives in Florida and hasn't sought to be reinstated. Thomas G. Smith, president-elect of the Monroe County Bar Association, formerly represented Shapiro. Although Smith said the new rules were needed, he said he believed that Shapiro bluntly stated what some other lawyers imply. "Frankly, every law firm's brochure says that they obtain optimal results," Smith said. "He just said it in a crasser way." As a counterbalance, the new rules will allow lawyers limited puffery: They can advertise if they've been evaluated by bona fide peer-reviews, such as the annual Best Lawyers in America publication. Stephen G. Schwarz, managing partner of the Rochester personal-injury firm of Faraci Lange, said he longs for the days when lawyers' ads were banned. "Speaking personally," he said, "it would have been better if the genie had never gotten out of the bottle and the Supreme Court hadn't opened this up." MZEIGLER@DemocratandChronicle

Former Supreme Court Justice O'Connor to mediate 60 year-old Kentucky land dispute.

blog@www.poppelawfirm.com (News Author)2136 — Tue, 30 Jan 2007 08:00:00 EST

Tuesday, January 30, 2007 O'Connor may mediate dispute Kentucky land case could mean millions By Jim Adams jadams@courier-journal.com The Courier-Journal Retired U.S. Supreme Court Justice Sandra Day O'Connor has told a federal court that she is willing to mediate a decades-old dispute over the government's taking of nearly 36,000 acres in Western Kentucky for an Army training camp during World War II. More than $30 million appears to be at stake in the highly unusual case, in which about 1,000 former landowners and heirs complain that the federal government wrongly benefited from the sale of oil, gas, coal and other mineral rights under the land of the old Camp Breckinridge. The camp sat astride Union, Webster and Henderson counties. The dispute was aired most recently in a class-action suit before Judge Susan G. Braden of the U.S. Court of Federal Claims in Washington, D.C. To encourage a settlement, Braden proposed in December that Fred J. Fielding, who was counsel to President Ronald Reagan from 1981 to 1986, serve as mediator. But on Jan. 9, President Bush announced that Fielding was returning to the White House as his general counsel. Braden then asked O'Connor to consider mediating the case and, according to an order Braden entered last Friday, the recently retired justice agreed to do so. Multiple legal issues remain unresolved, and Braden's order proposes that O'Connor serve as mediator "for a term of 120 days to ascertain whether a settlement may be achieved." Asked about the 120-day time period, William T. Griggs of Morganfield -- whose family's 250-acre Union County farm was taken by the government and has since been mined for coal -- said: "That sounds like a long time, but I understand that it takes a long time, there's a lot to do there. ... When you've waited 60-some years, you get kind of impatient." Griggs was 18 when his family's property was taken for about $70 an acre, or roughly $17,500. Asked what she thinks of O'Connor's role in the case, Ruby Higginson of Evansville, Ind. -- who was a high schooler in the 1940s when her family's 803-acre farm was taken for about $67,000 -- said, "I just know that she is a very outstanding individual and we are happy that we have progressed this far." Attorney Mark Stephen Pitt of Louisville, who represents plaintiffs in the case, said, "Justice O'Connor's willingness to become involved demonstrates the importance of this case and the unusual nature of the case, and the need that it be resolved, if possible, sooner rather than later." The Justice Department would not comment on the judge's proposal that O'Connor serve as mediator. She could not be reached yesterday. Braden has given both sides until Feb. 15 to consent or object to O'Connor's appointment. Pitt said the plaintiffs intend to file their consent soon. Early in World War II, the government decided the farmland immediately east of Morganfield was prime real estate for an Army training site. So between 1942 and 1944, it initiated six condemnation actions in U.S. District Court, taking the property of hundreds of landowners. The government paid them about $3.1 million for 35,849 acres, and Camp Breckinridge eventually held as many as 45,000 soldiers at a time. By the 1950s, if not earlier, the government became aware of substantial oil, gas and coal reserves beneath the property -- and by the 1960s was selling off the mineral rights and the land itself. The former landowners complained that the government sold the land in blocks too large for average individuals to buy. Such an action, they claim, violated verbal understandings at the time of the sales that the former owners would have the option of buying back their farms, should the government ever sell the property. In addition, they argue that it was unfair for the government to profit as it did from more than $30 million in the sale of mineral rights. The first legal action, in the mid-1960s in federal court, was dismissed. In 1968, the former landowners formed the Breckinridge Land Committee, which still meets on the third Friday of each month in the county courthouse annex in Morganfield. It began lobbying for Congress to intervene. In 1993, the Senate referred the case to the Court of Federal Claims. Braden, who took the case over in 2003, held in 2005 that the contracts under which the government acquired the property were based on a mutual mistake -- "that no coal, gas, oil or other mineral deposits existed under the condemned properties" worth extracting. As a result, the government was "unjustly enriched," and the "available remedy" is restitution, she wrote. Braden's report in December set out about $34 million that the government "received from the sale, lease or easement of coal, oil, gas and other mineral rights that were previously the property of the plaintiffs in this case." In addition, she wrote, the government sold surface rights to 31,963 acres between 1956 and 1968 for just under $6 million. "It is a tragedy that the original claimants in this case apparently are now dead, without a final resolution of this matter," she wrote. Reporter Jim Adams can be reached at (502) 582-4199.

Lawyers don't get the respect they deserve.

blog@www.poppelawfirm.com (News Author)2125 — Mon, 29 Jan 2007 08:00:00 EST

ARCHIVES Lawyers don't get respect they deserve It's become fashionable to knock lawyers. People who couldn't tell a funny joke to save their lives can recite insulting wisecracks about the legal profession. The fact lawyers are held in such a low esteem came to mind the other day when Democratic hopeful John Edwards announced his intention to seek his party's nomination for the presidency. Before serving a term in the U.S. Senate, Edwards was a personal injury trial attorney and specialized in corporate negligence and medical malpractice claims. He ended up making a fortune through his success as a trial lawyer. And that, more than his inexperience serving in an executive political capacity, may be the biggest handicap he has to overcome. His detractors will make up disparaging stories about him dragging people with fake bandages into court and then having them get out of their casts and wheelchairs to dance around celebrating over huge settlements. The fact he was defending the rights of innocent victims will be downplayed. Unless it's in the context of a television program, lawyers today do not get any respect. For some reason the public revels in watching lawyers protect the justice system on TV but takes a dim view of lawyers in the real world. When the subject of lawyers is mentioned, eyes roll and complaints of red tape and high legal fees are often raised. To some, being a lawyer ranks on the same level as being an embezzler, pickpocket or corrupt politician. "They chase ambulances, looking for lawsuits to pry money from people and companies," is a charge leveled quite frequently. It's not uncommon to hear comments like, "Lawyers and their litigation are ruining this country." Or — "Leave it to a lawyer to take something simple that can be settled out of court with common sense and make it a complicated issue that costs everyone money." A few years ago a neighbor of mine complained after a nearby house had been sold. "I heard a lawyer bought the place," he said. "Just what we don't need, a lawyer moving into the block." I mistakenly thought he was joking. OK, there are greedy lawyers. And there are attorneys around who do not always have the best interest of their clients at heart. However, every profession has its share of people who don't measure up under close scrutiny. Those who chase ambulances and try to exploit situations unfairly are the exception rather than the rule. Take a moment to evaluate the people you know who are lawyers. I think it's safe to say we are all familiar with lawyers who work tirelessly around the clock to serve their clients. Most of the attorneys I know will go out of their way to encourage settlements in cases before they go to court. With the exception of divorce cases, where too often emotion pushes things into a win-at-all cost mentality, the lawyers I know are reasonable and practical. The process alone of becoming a lawyer, forging through law school and having to pass stringent state bar exams, is enough to discourage all but the most dedicated. Many go into the law profession to defend people without enormous wealth, giving them a chance to compete on equal footing against the rich, famous and powerful in a court of law. Certainly it's true we live in a society that has become needlessly controlled by litigation. But that's not the fault of lawyers. Blame people who are too often greedy, self-centered and caught up in the ruthless nature of the corporate world for having a need to hire lawyers. For the most part, lawyers abide by a high code of ethics and steer their clients to play by the rules. What could be more honorable than that? - David Maril, an Enterprise copy editor, can be reached at dmaril@enterprisenews.com.

Former Enron lawyers to pay $18 million to settle potential legal malpractice claims.

blog@www.poppelawfirm.com (News Author)2124 — Mon, 29 Jan 2007 08:00:00 EST

Enron Law Firm to Pay $18M Houston (Jan. 23, 2007) - Texas law firm Andrews Kurth will pay Enron's estate $18.5 million to settle Advertisement "We have continuously denied wrongdoing and culpability with respect to our work for Enron," Andrews Kurth managing partner Howard Ayres said in a statement. "We felt, though, after the passage of five years, that it was expedient to enter into the settlement to put this matter behind us." While the estate never officially sued the law firm for allegedly signing off on improper deals, a court-appointed bankruptcy examiner has written in reports that the firm may have committed malpractice in approving 28 transactions that involved asset transactions allegedly disguised as sales. Classifying the transactions in such a manner could have allowed Enron to falsely boost its cash flow. Last year, another Houston-based law firm -- Vinson & Elkins -- settled bankruptcy-related litigation for $30 million. The bankruptcy examiner had alleged that Vinson & Elkins may have committed malpractice by failing to respond to red flags about Enron's accounting practices. Both law firms neither admitted, nor denied, wrongdoing or liability in agreeing to the settlements. A federal bankruptcy judge must approve Andrews Kurth's deal. — WebCPA staff

State Farm finally agrees to pay Katrina victims

blog@www.poppelawfirm.com (News Author)2087 — Wed, 24 Jan 2007 08:00:00 EST

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."

Jury in MSD returns with mixed verdict

blog@www.poppelawfirm.com (News Author)2086 — Wed, 24 Jan 2007 08:00:00 EST

Both sides claim victory in MSD suit By Joseph Gerth jgerth@courier-journal.com The Courier-Journal A federal court jury found Wednesday night that the Metropolitan Sewer District had violated state whistleblower law when it fired two employees after one of them complained about political interference on a sewer project. But the jury's decision to award little in damages left both sides claiming victory. Former inspector Ron Barber will get $35,000 for lost wages. But but former environmental engineer Sarah Lynn Cunningham wasn't awarded anything. The two also had asked for punitive damages, but the jury didn't agree. The jury also rejected Cunningham's claim that MSD violated her constitutional right to free speech. She had complained to the state attorney general's office more than two years ago about what she believed were improprieties on a sewer project in the Valley Village area. She claimed that Louisville Metro Council member Bob Henderson, his aide, Larry Mattingly, and former MSD board member Bill Gray interfered on the project and tried to reward political supporters with free fill dirt from the project. Henderson and Mattingly have denied wrongdoing. Gray died in November. Barber said he was just glad to get the story out and hopes that others who still work at MSD and testified in the seven-day trial don't face reprisals. "I'm tickled. I wanted it out so people don't have to work under this kind of pressure." Cunningham said money wasn't important. "They said what MSD was doing was wrong. I hope this will prevent this from happening to other people." MSD Executive Director Bud Schardein said he felt "like a kid on Christmas morning. ... I'm glad it's over with so I ... can concentrate on sewers and drainage." He said the jury found that there was a "technical" violation of the state whistle-blower law. Schardein said his one regret is that he spent thousands of dollars of rate-payers' money to defend "people at MSD who did nothing wrong." Reporter Joseph Gerth can be reached at (502) 582-4702.

New evidence may help Comair victims' attorneys.

blog@www.poppelawfirm.com (News Author)2073 — Tue, 23 Jan 2007 08:00:00 EST

Attorneys say details in Comair crash investigation help lawsuits Julie Ocepek Created: 1/20/2007 2:14:46 PM Updated:1/20/2007 2:18:56 PM LOUISVILLE, Ky. (AP) -- Attorneys involved in the lawsuits stemming from the crash of a Comair flight in Kentucky last summer say new revelations could leave the airline, the airplane's builder and the Lexington airport open to punitive damages. Autopsy summaries released with other documents related to the crash show that 16 people lived through the initial impact and were alive when the plane caught fire after crashing. One person of the 50 aboard survived. The parties also could be open to the damages because of possible violations of Comair and Federal Aviation Administration policies. Comair says an investigation has found multiple factors contributed to the crash. The carrier is based outside Cincinnati in Erlanger, Kentucky.

Courier Journal Reports Blacks Underrepresented on Jefferson County Juries

blog@www.poppelawfirm.com (News Author)2072 — Tue, 23 Jan 2007 08:00:00 EST

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.

Lexington Kentucky ComAir cockpit voice recorders reveal pilots violated "sterile cockpit" rule and flight Controller changes his story

blog@www.poppelawfirm.com (News Author)2050 — Thu, 18 Jan 2007 08:00:00 EST

Wednesday, January 17, 2007 E-mail this | Print page 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.

Local lawsuit against Vatican allowed to Proceed

blog@www.poppelawfirm.com (News Author)2047 — Mon, 15 Jan 2007 08:00:00 EST

courier-journal.com > Local News View 7 days > Su M Tu W Th F Sa Adv. search > Friday, January 12, 2007 E-mail this | Print page Suit against Vatican can proceed Child sex abuse cover-up is alleged By Jason Riley jriley@courier-journal.com The Courier-Journal A federal judge in Louisville issued a "historic" decision yesterday by refusing to dismiss a lawsuit against the Vatican that alleges a cover-up to protect priests who molested American children. "This is the first and only case which has as its sole objective holding the Vatican financially accountable for all of the childhood sexual abuses committed in the U.S.," said Louisville attorney William McMurry, who filed the suit in 2004 on behalf of three men who allege abuse dating as far back as 1928. If U.S. District Judge John Heyburn II's decision stands, it could open the door for attorneys to take depositions of Vatican officials -- including Pope Benedict XVI -- obtain copies of church records and documents and ultimately determine "what prompted all of the bishops to keep quiet, hide these pedophiles and refuse to report child abusers," McMurry said. He called the decision "historic." But Jeffrey Lena of Berkeley, Calif., counsel for the Vatican, known legally as the Holy See, said Heyburn's decision rejected portions of McMurry's lawsuit and left the case hanging on a "fairly weak linchpin" -- that U.S. Catholic clergy are employees of the Vatican. "The Holy See is just not responsible for this, and that's the bottom line," Lena said. Regardless, the case could be entangled in appeals for years before eventually ending up at the U.S. Supreme Court, McMurry and Lena said. One of the three plaintiffs is Michael Turner of Louisville, who also filed the first in a wave of roughly 250 sexual-abuse lawsuits against the Archdiocese of Louisville between 2002 and 2003. The litigation culminated in a $25.7 million settlement with most of the plaintiffs. McMurry and his legal team received 40 percent of most plaintiffs' payments. The two other plaintiffs in the Vatican suit are James H. O'Bryan and Donald E. Poppe, both of whom live in California and say they were abused by priests while growing up in Louisville. All three are asking for unspecified monetary damages from the Vatican. McMurry also is requesting injunctions requiring the Vatican to "cease its violations of the internationally recognized human rights of children" and "to report all allegations of childhood sexual abuse" in the United States. And he is asking a federal judge to supervise the Vatican's conduct for 10 years. Legal scholars contacted yesterday said they hadn't thought the lawsuit -- the only sexual-abuse suit naming the Vatican as the sole defendant -- would make it this far, and they still doubt it will survive. "The Holy See is not responsible for the day-to-day supervision, appointments and discipline of individual clerics," said Mark Chopko, general counsel for the U.S. Conference of Catholic Bishops. Other legal experts say that no matter the result, it may be impossible to win damages from the Vatican, which is a sovereign state with many legal protections. "The question is whether you can get a judgment against the Vatican and have them actually pay," said Carl Tobias, a law professor at the University of Richmond. "I'm surprised you can get jurisdiction in a U.S. court over the Vatican." But Jeff Anderson, a Minnesota-based attorney who filed a similar suit against the Vatican in 2003 that also has been allowed to go forward, said since the Vatican does business in this country, it submits itself to U.S. laws and legal obligations. In his ruling, Heyburn refused to dismiss allegations that the Vatican failed to report incidents of child abuse and failed to warn parishioners that their children would be under the care of known or suspected pedophiles. The other claims that remain against the Vatican, according to the ruling, are outrage and emotional distress and violations of the customary law of human rights. Heyburn, however, did dismiss a negligence claim that the Vatican failed to provide safe care of children entrusted to the clergy. The judge also dismissed deceit and misrepresentation claims. Lena said the Vatican did not present any evidence before the decision. He said the ruling is based on a preliminary legal challenge in which the judge must treat the facts stated in the complaint as if they were true. David Clohessy, national director of Survivors Network of those Abused by Priests, said the ruling is a step "towards the truth." "This is part of a slow but clear trend by judges everywhere to hold wrongdoers responsible for child sex crimes, even if they wear clerical garb." McMurry is basing a large part of his claim on a secret 1962 Vatican document. Leaked to the public last year, the document, approved by then-Pope John XXIII, calling for strict secrecy in handling priests accused of soliciting sex in the confessional, he said. McMurry called it a "smoking gun" that also requires Catholic Church leaders to keep secret other allegations of sexual misconduct. Some experts in church law have downplayed the significance of the document. They say it only required secrecy in the church disciplinary process and did not prevent a bishop from reporting crimes to police. McMurry is seeking to have the Vatican suit certified as a class-action case, saying he believes there are "at least several thousand" victims nationwide. Given Pope Benedict XVI's age, 79, McMurry said he will request that attorneys be able to depose the pope now. McMurry said that is important because the pope was a bishop on a commission that dealt with priests accused of sexual abuse. "He knows where all the bones are buried," McMurry said. Reporter Jason Riley can be reached at (502) 582-4727.

Campbellsville, Kentucky Jury Awards $900,000 in Bad Faith Case

blog@www.poppelawfirm.com (News Author)2046 — Mon, 15 Jan 2007 08:00:00 EST

Central Kentucky News Journal Wednesday, January 10, 2007 Archives Defendants appeal jury award By Calen McKinney, Staff Writer Two insurance companies are appealing a jury's decision to award more than $700,000 to a Campbellsville man for damages he suffered when his son was killed in a 1995 collision. Harlon Barnett, individually, and as administrator of the estate of Steven Ray Barnett, filed suit against Hamilton Mutual Insurance Co. of Cincinnati, Ohio, and Caulk and Eastridge Insurance Co. of East Broadway in Campbellsville in Taylor Circuit Court on Jan. 4, 2000. EMC Insurance Co. was later added as a defendant. The lawsuit alleged that Barnett was entitled to damages resulting from the "bad faith" actions of the insurance companies. The suit stemmed from a collision that resulted in the death of a Finley teenager and four Campbellsville men. According to court records, Sixty-Eight Liquors allegedly sold beer to Phillip Matthew Colvin, 16, of Finley on June 2, 1995, before he collided head-on with another car. Colvin died in the collision. The other four killed were: Jeremy N. Clark, 19, of Hatcher Road in Campbellsville; Brent Murphy, 26, of Happy Hills Drive in Campbellsville; Kevin "Ace" Kearney, 25, of Wickliffe Avenue in Campbellsville; and Steven Ray Barnett, 21, of Willow Way in Campbellsville. Murphy, Kearney and Barnett were passengers in Clark's vehicle. Clark was the only one of the five men who was wearing a seat belt. According to autopsy reports, both drivers were under the influence of alcohol. In September 2006, more than 10 years after the collision and six years after Barnett filed his suit, a jury heard testimony in Taylor Circuit Judge Doughlas M. George's courtroom. Overall, the jury awarded Barnett $755,000 for lost legal costs, interest and investment income and punitive damages. According to court records, Barnett was also awarded $195,833.33 for his attorney's fees, making the total $950,833.33. Campbellsville attorney David Nunery represented Hamilton Mutual Insurance Co. and EMC Insurance Co. He said the claims against Caulk and Eastridge were dismissed just before the trial began. EMC Insurance Co. is a large national insurance carrier, Nunery said, and was added as a defendant in the case because it purchased Hamilton Mutual Insurance Co. in 1997. On Tuesday, Nunery said the case was appealed to the Kentucky Court of Appeals on Dec. 27. Nunery said he and the other attorneys involved in the case will begin the appeals process with briefs filed on several issues. The case will eventually be assigned to a three-judge panel, Nunery said, that will settle the issues by writing an opinion. If necessary, Nunery said, the case could be taken to the Kentucky Supreme Court for review. The appeals process, he said, can take more than a year. The appeal, filed by Steven Casey Call of Nunery and Bennett PLLC, cites numerous issues for the Court of Appeals to consider. Lexington attorney Austin Mehr represented Barnett. In September, Mehr said he thought the jury's decision was a good one. "These types of cases need to be brought occasionally to level the playing field with insurance companies who like to hold on to their money ... this company definitely owed $900,000 to [the Barnetts]." Mehr said Hamilton Mutual Insurance Co. wanted to play "hard ball" in its negotiations. "They did that," he said. "They got what they deserved." On Tuesday, Mehr said he will be contesting the appeal. Mehr said he thought George did an excellent job of ensuring that the defendants had a fair trial. "[We] think the decision is right," he said. "We think [the insurance companies] ought to recognize that they're wrong and pay the judgment." - Staff Writer Calen McKinney can be reached at 465-8111 Ext. 302 or by e-mail at reporter@cknj.com.

Jury Awards $2.5 Million in Punitive Damages Against State Farm for Denying Katrina Claim

blog@www.poppelawfirm.com (News Author)2045 — Sun, 14 Jan 2007 08:00:00 EST

Jury hits State Farm for $2.5 million in Katrina case POSTED: 2:27 a.m. EST, January 12, 2007 Story Highlights• Jury awards Biloxi, Mississippi, couple punitive damages • Judge rules State Farm is liable for $223,000 in storm damage to home • Insurer had argued it wasn't liable for damage caused by water • Ruling could affect hundreds of other cases Adjust font size: GULFPORT, Mississippi (AP) -- A jury on Thursday awarded $2.5 million in punitive damages to a couple who sued State Farm Fire & Casualty Co. for denying their claim after Hurricane Katrina. The decision could benefit hundreds of other homeowners challenging insurers for refusing to cover billions of dollars in storm damage. A federal judge only hours earlier had taken part of the case out of jurors' hands before they awarded punitive damages to State Farm policyholders Norman and Genevieve Broussard. U.S. District Judge L.T. Senter Jr. ruled Thursday morning that State Farm is liable for $223,292 in damage Hurricane Katrina caused to the Broussards' home. Senter left it to the jury to decide whether to award punitive damages. Senter's decision to make a directed verdict rather than let the jury decide the entire case appeared to surprise everyone in the courtroom. After he explained his ruling, Senter ordered a recess to give attorneys time "to get over the shock." (Watch attorneys from both sides discuss the ruling ) Some of Senter's earlier rulings in other Katrina cases have favored the insurance industry, but his decision Thursday calls into question the companies' refusal to cover damage from Katrina's storm surge. The Broussards sued State Farm for refusing to pay for any damage to their home, which Katrina reduced to a slab. The couple, who wanted State Farm to pay for the full insured value of their home plus $5 million in punitive damages, claimed that a tornado during the hurricane destroyed their home. State Farm blamed all the damage on Katrina's storm surge. (Watch how some homeowners feel they've been victims twice ) State Farm and other insurers say their homeowner policies cover damage from wind but not from water, and that the policies exclude damage that could have been caused by a combination of both, even if hurricane-force winds preceded a storm's rising water. Senter, however, ruled that State Farm couldn't prove that Katrina's storm surge was responsible for all of the damage to the Broussards' home. The judge also said the testimony failed to establish how much damage was caused by wind and how much resulted from storm surge. "We are surprised and disappointed by the court's ruling," said State Farm spokesman Phil Supple. "The expert testimony supported a different result. After the conclusion of this case, we will evaluate our next steps in this lawsuit." In his closing argument Thursday, one of the Broussards' attorneys, William Walker, said State Farm had breached their contract "in a bad way" by denying their claim. State Farm "acted like a chiseler," he said, adding, "The pocketbook is what they listen to." State Farm attorney John Banahan urged jurors to "use your head and your heart" in deciding on punitive damages and to reject an attempt by the Broussards' attorney to demonize the company as an "evil empire." Robert Hartwig, chief economist for the Insurance Information Institute in New York, said before the jury announced its decision that a punitive damage award would be "distressing" for insurers. "It adds even more cost and more uncertainty to the other problems that already exist in the Mississippi homeowners insurance market," he said. Settlement talks in separate case The Broussards' case isn't directly involved in recent settlement talks between State Farm Fire & Casualty Co., Mississippi Attorney General Jim Hood and policyholders' lawyers. People with direct knowledge of the settlement talks told The Associated Press this week that State Farm, Mississippi's largest home insurer, is considering paying hundreds of millions of dollars to settle more than 600 lawsuits and resolve thousands of other disputed claims. Richard "Dickie" Scruggs, an attorney who represents 639 State Farm policyholders in the settlement talks, said he doesn't know how the judge's ruling on Thursday will affect the negotiations. Randy Maniloff, a lawyer in Philadelphia, Pennsylvania, who represents insurers and has closely followed the Katrina litigation, said Senter's ruling is a "huge verdict" for homeowners. "That settlement is looking awfully good for State Farm now," he added. Copyright 2007 The Associated Press. All rights reserved.This material may not be published, broadcast, rewritten, or redistributed.

Courier Journal Article: Senior Judge Program Sparks Many Objections

blog@www.poppelawfirm.com (News Author)2044 — Sun, 14 Jan 2007 08:00:00 EST

Senior judge program sparks many objections Critics decry lack of merit screening By Andrew Wolfson and Jason Riley The Courier-Journal Lawyers routinely gave her by far the worst marks in bar surveys. And in November, Jefferson County voters removed her from office after eight years in District Court. But Paula Fitzgerald is back -- as a senior judge, one of 42 retired judges statewide who work part time to help handle the Kentucky courts' growing caseload. To Fitzgerald's critics, her appointment undermines the voters' will and points out the lack of merit screening that other states have in place for selecting senior judges. "The voters threw her out, and now she doesn't have to answer to the voters anymore," said Jefferson Commonwealth's Attorney Dave Stengel, who protested Fitzgerald's appointment to Kentucky Chief Justice Joseph Lambert. "There is no accountability." Stengel said Fitzgerald's behavior in court was "eccentric to the point of being bizarre." He said she refused to enter the results of cases in a courtroom computer and to fax approval for search warrants to police or prosecutors. Lambert said that he was aware of the criticism of Fitzgerald but that he has no discretion to exclude judges from the program, as long as they meet the age and service requirements and have no pending disciplinary complaints. Appointments Fitzgerald isn't the only Kentucky judge to lose an election and still receive a senior appointment. Ann O'Malley Shake, a highly regarded circuit judge who lost a Supreme Court race last year, was among those added this month. And Henry Weber, a former district judge who routinely had some of the highest ratings in lawyer evaluations, became a senior judge after losing a re-election bid. But Fitzgerald was consistently rated as one of Jefferson County's worst judges. In four successive Louisville Bar Association surveys and evaluations, she received the lowest marks of any district or Family Court judge. Earlier this year, 31 percent of the lawyers who appeared before her said she was unqualified to sit on the bench, which far exceeded any other incumbent's numbers. Fitzgerald, who was defeated by Annette Karem in the November election, didn't respond to several requests for comment. After the most recent bar poll was released, which was last February, she didn't dispute the rankings and instead focused on achieving "social and economic justice for the everyday people of Jefferson County." Louisville attorney Scott Cox, one of a half-dozen lawyers who contributed to Fitzgerald's re-election campaign, said he routinely appeared in her courtroom and she was "always very courteous to me and fair to my clients. She had a soft spot in her heart for poor people who appeared before her and victims of domestic violence." Lack of screening Unlike some states, Kentucky has no merit screening of appointments for senior judges, who are assigned to fill vacancies around the state and agree to serve 120 days a year for five years. In exchange, they receive enhanced retirement benefits usually worth several thousand dollars a year. In Indiana, applicants must apply to a commission and submit the names of three lawyers who appeared in their court. In Tennessee, the Supreme Court must determine that an applicant's service "would promote the effective administration of justice." And in Florida, candidates are evaluated not only when they apply, but also periodically after their appointment. The Florida Supreme Court also bars judges who lost their most recent election. Even though "competent judges may occasionally fail to win re-election," the Florida court said, "concerns of public trust and deference to the electoral process dictate that the expressed will of the voters prevail." 'Some kind of discretion' Kentucky has 45 judges in its program, including seven from Jefferson County. Fitzgerald is one of 14 who were added Jan. 7. The program, created in 2000, expires this year unless it is extended by the General Assembly. Jefferson County Public Defender Dan Goyette said that considering Kentucky's deep-seated tradition of electing judges, "it seems incongruous" to allow judges who have failed to win re-election to continue presiding over cases involving the same citizenry that removed them from office. "The situation is exacerbated by the fact that there is no review mechanism ... to determine their suitability to continue serving, notwithstanding having been 'unelected,' " said Goyette, chairman of Citizens for Better Judges, which promotes the election of qualified candidates. Stengel said he will support legislation this year to require screening of applicants for senior judge. The presidents of the Louisville Bar Association, Tom Williams, and the Kentucky Bar Association, Bob Ewald, agreed that screening is warranted. "There should be some kind of discretion," Ewald said. Lambert recalled that when the program was created, some legislators said they didn't want participants to be subject to "potentially arbitrary decision-making" about who got in. But he said that screening would "probably be a good idea" and that he will work with the General Assembly "in perfecting" the program. However, although barring defeated judges might seem like a good idea, Lambert noted that some good judges are defeated when they seek re-election. That fear of losing might discourage good judges from seeking another term, he said. Judge qualifications The senior judge program is open to retired or defeated judges whose age and years of service, including previous government employment, add up to 75. Fitzgerald, 59, was once a state corrections officer. The commonwealth's attorneys association contends that the program might violate the Kentucky Constitution, which requires that judges be elected, according to group president Rickey Bartley, the Pike County commonwealth's attorney. The constitutionality of the program has not been tested, but Lambert noted that another section of the state constitution gives the chief justice the right to "assign temporarily" any judge, active or retired, to sit on any bench but the Supreme Court. Lambert and other state court officials say that it is cheaper to use senior judges than to create new judgeships, in part because the former work out of their homes or use the office and staff of the sitting judge for whom they are covering. They also are available to travel on short notice to wherever they are needed. Creating a single new judgeship costs about $300,000 a year, Lambert said. The senior judge program costs about $550,000 a year, including expenses and appropriations for enhanced retirement benefits, court officials said. "The senior status program is a bargain for Kentucky taxpayers," Lambert said. Reporter Andrew Wolfson can be reached at (502) 582-7189. Reporter Jason Riley can be reached at (502) 582-4727.

Article on Kentucky Doctor

blog@www.poppelawfirm.com (News Author)2025 — Wed, 03 Jan 2007 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.

Attorney Blog

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

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

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

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

Ohio Supreme Court Rules Cops Can "Eyeball" Speeding Motorists

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

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

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

Hans To Argue Before Kentucky Supreme Court Wednesday.

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

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

Study About Kentucky Court System is Bogus

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

Study skews view of courts

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

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

The Tort Reform Myth Explained....

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

Tort Reform Is Anti-Democratic (And Ingeniously Marketed)

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

Drunk Drivers Get Locked Out....

Ohio Doctors Get Immunity From Malpractice Suits

PETA Drops Plan To Use Tiger On Controversial Billboard

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

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

Will Advertisers Sue Tiger Woods...

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

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

Louisville Bat Maker Hit With $850k Verdict

DWT--Driving While Texting. Death on Kentucky Roads

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

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

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

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

Is Commonwealth Dodge Liable for Fatal Wreck on Fern Valley Rd

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

Tort reform doesn't cut health costs

Judge Orders Microsoft to Stop All US Sales of Word

Court Upholds $21.6 Million Bad Faith Verdict

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

Study on Nursing Homes Reveals....

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

The Lucky 13

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

Louisville MD Suspended for touching....

The Case of the Exorbitantly Expensive Emeralds...

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

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

The REAL TRUTH About Medical Malpractice Verdicts in Kentucky

Former Louisville Lawyer Has More Problems...

Leveling The Playing Field...

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

Kentucky Nursing Home Added to Federal Oversight List

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

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

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

The Truth About TV Advertising Lawyers....

New York Times Exposes Hired Gun Doctors

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

Jury Awards $24 Million in Truck Wreck Case

$24 million award in fatal truck crash

Landmark $11 million Dolllar Nursing Home Verdict

$65 Million Dollar Semi-Truck Wreck Verdict

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

The Myths of Arbitration

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

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

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