Personal Injury Law Round-Up #58

Life has returned to normal, and I hope the Round-Up can return to its usual standard of glory (or substandard, as the case may be). But before we move on, congrats to Eric Turkewitz for being named the ABA’s Blawg of the Week.

We’ll start off with tort “reform”….

I suppose the big tort reform story of the week is the story of Sue Easy (TinyURL provided). Turkewitz asks, “Is Sue Easy the Worst Lawyer Idea Ever?” Fellow Texan Luke Gilman has “SueEasy, So Easy It Can’t Be Good, Really.” Above the Law has “Only in America:SueEasy.Com.” And Walter Olsen has a surprisingly restrained post at Overlawyered. Generally, I think this might be the worst idea since I thought sueyou.com would be a good URL for a plaintiff’s firm.

Moving on, this is news from March (and I may even have written about it then) but I found a post this week pointing to a study in the March 2008 Journal of Empirical Legal Studies that finds that there is no empirical data to support the assertion that OB/GYNs were relocating due to tort reform or malpractice premiums. It has the thrilling title, “A Longitudinal Analysis of the Impact of Liability Pressure on the Supply of Obstetrician-Gynecologists.” With a catchy title like that, I don’t know how I could have missed it.

Subject to Complete Defeasance (new to the round-up this week) has “More Bad News on the FDA Preemption Front” looking at the Colacicco v. Apotex decision.

And this is a new category this week, the pseudo-personal injury case/tort “reform” category…

Four Alabama residents filed suit against Southwest after flying on planes that needed inspections. Miller and Zois have their response. And from the post at Overlawyered and the comments at the Consumerist, you can tell this has the potential to be another poster case for tort reform.

In California, a judge approved the settlement of a Ford Explorer class action. As an attorney that does a fair amount of class action work, I think this is a poor settlement. The plaintiffs in the case claimed that the value of the vehicles decreased due to perceived rollover risks. Under the settlement, class members are eligible to receive coupons of $500.00 for the purchase of a new Explorer or $300.00 for any other Ford vehicle. The attorneys stand to gain up to $25 million in fees and costs. This coupon settlement seems, on its face, to be unacceptable. The National Association of Consumer Advocates Class Action Guidelines contains the following, “Certificate settlements have many disadvantages and should be proposed by class counsel only in the rare case.” The NACA guidelines set out the following basic positions:

(1) certificate-based settlements should never require identifiable class members to purchase major, large ticket items as the sole relief.

(2) certificates should have some form of guaranteed cash value.

(3) certificate settlements should never be proposed to the court unless it is apparent that the defendant is providing greater true value to class members than would be available from an all-cash settlement.

(4) a settlement involving coupons should require a minimum level of redemption by the class members within a reasonable period of time, and the defendant should provide other relief if that minimum level is not met.

(5) class counsel and defendants should submit to the court and all counsel detailed information on redemption rates during the life of the coupon so there is a public record to assist in future class action cases.

It’s apparent that this proposed settlement violates the first guideline, and I haven’t been able to determine if any of the other safeguards were provided in the settlement. I’ll also add that in Texas, the settlement likely couldn’t go forward. Our version of Rule 42 requires that if any portion of a settlement is in the form of coupons then the attorneys’ fees awarded must be awarded in cash and noncash amounts in the same proportion to the class’s recovery. (Though I’ll add that it appears that the lawsuit in California pre-dates this version of the statute). Anyway, I’ll get off my soapbox and move on.

The personal injury litigation news…..

Probably the biggest litigation story in the blogosphere this week was the JAMA and NYT articles on Merck using ghostwriters in their Vioxx studies. There was commentary from Injuryboard, Mass Torts Lit, Pharmalot, the WSJ health blog, and HealthLaw Prof Blog, among others.

From Virginia lawyer Dan Frith, a Baltimore jury awarded $1.75 million in a lead paint case.

From Bill Childs at TortProfs, there’s a new danger in plastics, including sippy cups.

In the “this is never good category,” the Illinois Nursing Home Abuse Blog reports that police arrested assisted living facility staff for using the facility as a drug front. (You don’t really need to click the link, that’s about all the details in the sketchy story.)

From Pharmalot, the Pharma industry continues to lobby for off-label rights.

In car wreck litigation, we’ve written a lot about the dangers of cell phones while driving. Now, Des Moines lawyer Steve Lombardi takes it one step further and asks whether the IPOD is causing more auto accidents.

And a new phenomenon in the medical malpractice arena is insurance companies providing ratings for doctors. SURPRISE, maybe the insurance companies are not giving the highest ratings to the best doctors, but to the cheapest. (Via KevinMD) (Kevin also has a link to problems with patients rating doctors. I do wonder who can rate doctors.)

And on to the miscellaneous….

John Day has How to Be a Great Trial Lawyer Part 12.

And if you’re into reading about presentation skills, the Presentation Zen website continues to provide excellent examples of speeches with a link to a new Steve Jobs keynote and The Story of Stuff.

Well….that’s it for this week. Thanks again for reading, and have a great weekend.

Brooks Schuelke

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

Personal Injury Subrogation Explained

In a topic near and dear to my heart, local attorney Judy Kostura has a very nice editorial in this morning’s Austin American Statesman that discusses, in plain language, the issues concerning personal injury subrogation.

Subrogation is a problem in almost all personal injury cases, and it’s something we’ve discussed in the following posts:

  • Personal Injury Subrogation Primer
  • Personal Injury Subrogation In the News
  • Personal Injury Subrogation In the News Again

Anyone interested in personal injury cases should take a few minutes to read all of the above links.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

Another Legal Malpractice Case Proceeds Against “Big Law”

In New York, a legal malpractice lawsuit is proceeding against mega-firm Paul Hastings. In the suit, an investor hired attorneys from the firm to conduct the due diligence in a $3 million investment.  The is now suing alleging that the firm committed legal malpractice by failing to ensure that the investor obtained all the mineral rights he understood he was receiving in the deal and for failing to ensure that other assets that secured the transaction were not encumbered.

We had a similar case several years ago against a local law firm.  An associate in the law firm failed to properly perfect the plaintiff’s security interest in the collateral securing the transaction.  The remarkable thing about the case was that the lawyer admitted he had made a mistake and actually referred the client to us.  Much to the chagrin of his carrier, he was very cooperative with us in making sure that his client was protected.

Posted on: April 16, 2008 | Tagged

Nail Gun Injuries Are On The Rise

The April 13 issue of the Sacramento Bee had a great article on the rapid rise of nail gun injuries. Nail gun injuries have been on the rise for two primary reasons.  First, the industry refuses to adhere to a safe design.  There are two types of nail guns: contact and sequential.  Contact nail guns fire when the trigger is pressed and the muzzle comes in contact with the target.  The safer type is the sequential nail gun.  To fire, these guns require that the nose muzzle be in contact with the target before the trigger is pressed.  This safety feature makes it far less likely that a user will experience accidental discharge. The Centers for Disease Control estimates that 65 to 69% of the injuries with contact guns would have been prevented if the gun being used was a sequential gun.  Unfortunately, there is a belief in the industry that sequential guns are slower than contact guns.  As a result, manufacturers continue to make contact guns despite the clear safety concerns.

Additionally, consumer nail gun injuries are rising due to the increase in weekend warriors.   Nail guns used to be a specialty tool used by experienced carpenters, but now any consumer can go to their local hardware store and choose from any number of nail guns.  These users, having no experience or training, are often a hazard to themselves and to those around them.

For more information on nail gun safety, check out:

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

Personal Injury Law Round-Up #57

Sorry for the delay in posting. I was in Florida at a seminar most of last week, and after taking the family on a weekend detour to Disney World, we didn’t return until after midnight last night. So this week’s version won’t be a complete round-up, but a short highlight of what’s going on. I’d like to promise that I’ll do better next week, but looking at this week’s schedule, who knows what I’ll have next go round.

On tort “reform”…

One of the lead stories of the week was the Washington Post’s pseudo-editorial encouraging “comprehensive tort reform.” Of course, the editorial’s only real criticism of the civil justice system involves unscrupulous plaintiff’s attorneys (and they don’t even offer solutions to that problem). They wholly ignore unscrupulous defense lawyers or adjusters. All in all, it’s just another fluff, knee jerk reaction to the latest news story of the day without any real analysis of the situation.

Another lead tort reform story was the Wall Street Journal’s story on the use of arbitration by nursing homes. The WSJ law blog has a related post with its usual cast of interesting comments.

Staying with arbitration, on Tort Deform, Kia posts that San Francisco has filed suit against the National Arbitration Forum for its bias against consumers.

In Florida, Allstate says that it is releasing the so-called McKinsey documents. (Via TortBurger). This might actually be old news, but it’s just getting around to me.

Also on tort reform, the Southeast Texas Record talks about a snail mail letter debate on the pros/cons of tort reform between a Texas federal judge and an Austin lawyer that represents Texans for Lawsuit Reform. (Via Chris Robinette at TortsProf).

A few litigation highlights…

Virginia reached settlements with 21 families for the Virginia Tech shootings.

W.R. Grace has announced a settlement of all pending and future asbestos-related personal injury claims.

The deaths continue to mount in the Heparin mess.

And the best of the miscellaneous news…

And the always thoughtful Deliberations had a link to a new jury website, Jury Experiences, which (you might be able to tell from the name) invites jurors to write in about their experiences on juries. This is a site that is really worth taking a little time to read. For example, the first post for today is from a juror in a car wreck case who explains why the plaintiff’s lawyer should have asked what the jurors thought of chiropractors.

And John Day continues with What it Takes To Be A Great Trial Lawyer, part 11.

Thanks again for reading.

Brooks Schuelke

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

Personal Injury Law Round-Up #56

It’s been a crazy week here in Austin so this week’s offer is a little slim. I don’t know how Eric Turkewitz has time to pull of the biggest April Fool’s Day joke in the history of the blogosphere, but I’m jealous.

I will add that the fierce T-Ball Diamondbacks have their first game tomorrow (with yours truly as coach). So given that, it’s important to note that April 2008 is Sports Eye Safety Month. Given that our team is all 4 and 5 year olds, I think we should be okay. The DC Metro Area Personal Injury Blog also says that April is Alcohol Awareness Month. (I dare say anyone trying to teach the game of baseball to a bunch of 4 and 5 year olds will be aware of alcohol.)

On to the tort “reform” news….

I hate to link to my own post, but one tort reform story of the week is How the Paulson Plan Will Affect Personal Injury Claims. Eric Turkewitz and Steve Lombardi also commented on the story.

Along the same lines, the Washington Times reported on preemption — The Silent Tort Reform.  I’ve said it before, and I’ll say it again: At a time when you have stories in the press literally every day about the CPSC or the FDA being overworked and not having the resources necessary to carry out their most basic responsibilities, why would you think it’s a good idea to have them preempt state tort laws? This is simply the most blatant form of pandering to big business and insurance companies possible.

Over at TortDeform, they report that the US Chamber of Commerce is attacking the arbitration fairness act. This is truly shocking news.

And all tort “reformers” favorite “journalist,” John Stossell is back. He’ll be on 20/20 tonight again espousing the dangers of lawsuits. How he can condemn lawsuits after filing his own personal injury suit stemming from one of his interviews is beyond me. Just another example of a tort reform hypocrite, I suppose.

Before I blow a gasket thinking about John Stossell, I’ll move on to the litigation news….

One of the big litigation stories has been Wal-Mart’s continued prosecution of its subrogation interest against Deborah Shank. Wal-Mart finally bowed to the publicity and has announced that it’s dropping its claim. Now, if the rest of us can get the New York Times and the Wall Street Journal to cover our subrogation nightmares, we’ll all be better off.

I’m not sure if this is personal injury or criminal law, but Ben Glass has the story of a nurse arrested after infecting patients. I have to think that having criminal charges brought against the defendant helps the liability claim.

Wrapping up the Erin Brockovich story, PG&E has agreed to pay $20 million to settle the final toxic tort claims filed against it.

In tractor-trailer news, almost a quarter of the trucks inspected in a Dallas, Tx surprise safety inspection failed the test. Having driven on I-35 here in Austin, I’d hazard a guess that most of those failed trucks had driven through town at some point or another.

And this is bound to end up on Overlawyered, but it appears that a Texas suit might be filed based on a teen being shot while playing the video game God of War. And the boy was in Marble Falls, less than 30 minutes from Austin.

Now on to the miscellaneous news….

Over at LexBlog, Kevin O’Keefe had an interesting post entitled Some Personal Injury Lawyers Continue Abuse of Legal Blogs. In the comments, Kevin promised to write a post about what content he thought a personal injury lawyer blog should have. I’m still waiting (Are you listening/reading Kevin?)

Back at work, John Day has What It takes to Be a Great Trial Lawyer, Part 9 and 10.

For those of us trying to fight inertia and move to a paperless office, the Illinois Trial Practice Weblog has the paperless office wiki.

That’s it for now. Thanks again for reading, and have a great weekend.

Brooks Schuelke

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

How the Paulson Plan Will Affect Personal Injury Claims

It’s hidden away, but one key plank of Treasury Secretary Henry Paulson’s plan to save the economy is the introduction of federal regulation of the insurance industry. That could be potentially disastrous to many personal injury claims.

Currently, the insurance industry is regulated by the states. Many states have adopted rules or laws that protect the states’ citizens from abuses by insurance companies. For example, here in Texas, the Insurance Code regulates how insurance companies can negotiate first party claims — those brought by a policy holder directly against his or her own insurance company. Here, the Insurance Code sets out timelines for when an insurance company can respond to claims and protects consumers against specified unfair practices in the negotiation and settlement of claims. In the personal injury context, these limits usually only apply in underinsured/uninsured motorist claims. The regulations also apply to any other claims brought by consumers against their insurance companies for failing to pay claims, including claims against life insurance and homeowners’ insurance companies. In other states, their regulations often apply to the typical third party personal injury claims.

Texas law also has regulations, established by years of case law, relating to subrogation claims. Specifically, Texas has adopted the common fund doctrines and the made whole rule that provide some measure of protection for consumers when their insurance company has a subrogation clause. These rules provide that an insurance company can’t just take all the money recovered in a claim. Under the made whole doctrine, if the defendant doesn’t have enough coverage to make the plaintiff whole, then the plaintiff is entitled to recover before he has to reimburse the insurance company. And under the common fund doctrine, the subrogation amount is reduced to reflect that the insurance company pays its portion of attorneys’ fees and expenses incurred in obtaining the money from the defendant.

The danger of Secretary Paulson’s plan is that any federal regulation would preempt the state laws that currently protect consumers. Observers can already see the potential results when looking at the Employee Retirement Income Security Act. ERISA, as it is known, was passed in 1973, and it was designed to protect employees who received benefits as part of their jobs. But now, the insurance industry uses it as a sword. For example, when a personal injury victim has health insurance through his or her job, insurance companies argue that ERISA preempts any state regulation that protects consumers from overreaching subrogation clauses. In Texas, that means that insurance companies argue that ERISA preempts state law regarding the common fund doctrine and made whole doctrines, and that personal injury victims must reimburse insurance companies for the whole amount of their claim instead of partial reimbursement. We now often spend more time fighting with insurance companies over subrogation claims than fighting about the underlying case.

If the federal government expands its regulation of the insurance industry, these problems will only multiply. Now, the federal government could put in any legislation that they are not preempting state regulations, but given this administration’s history on trying to use preemption as a way to prevent lawsuits, the odds of that happening are slim and none.

For more on Secretary Paulson’s plan, read here:

For more of my thoughts on subrogation, read here:

  • A Subrogation Primer
  • Texas Supreme Court Votes Against Personal Injury Claimants
  • Personal Injury Subrogation, continued

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

How the Paulson Plan Will Affect Personal Injury Claims

It’s hidden away, but one key plank of Treasury Secretary Henry Paulson’s plan to save the economy is the introduction of federal regulation of the insurance industry. That could be potentially disastrous to many personal injury claims.

Currently, the insurance industry is regulated by the states. Many states have adopted rules or laws that protect the states’ citizens from abuses by insurance companies. For example, here in Texas, the Insurance Code regulates how insurance companies can negotiate first party claims — those brought by a policy holder directly against his or her own insurance company. Here, the Insurance Code sets out timelines for when an insurance company can respond to claims and protects consumers against specified unfair practices in the negotiation and settlement of claims. In the personal injury context, these limits usually only apply in underinsured/uninsured motorist claims. The regulations also apply to any other claims brought by consumers against their insurance companies for failing to pay claims, including claims against life insurance and homeowners’ insurance companies. In other states, their regulations often apply to the typical third party personal injury claims.

Texas law also has regulations, established by years of case law, relating to subrogation claims. Specifically, Texas has adopted the common fund doctrines and the made whole rule that provide some measure of protection for consumers when their insurance company has a subrogation clause. These rules provide that an insurance company can’t just take all the money recovered in a claim. Under the made whole doctrine, if the defendant doesn’t have enough coverage to make the plaintiff whole, then the plaintiff is entitled to recover before he has to reimburse the insurance company. And under the common fund doctrine, the subrogation amount is reduced to reflect that the insurance company pays its portion of attorneys’ fees and expenses incurred in obtaining the money from the defendant.

The danger of Secretary Paulson’s plan is that any federal regulation would preempt the state laws that currently protect consumers. Observers can already see the potential results when looking at the Employee Retirement Income Security Act. ERISA, as it is known, was passed in 1973, and it was designed to protect employees who received benefits as part of their jobs. But now, the insurance industry uses it as a sword. For example, when a personal injury victim has health insurance through his or her job, insurance companies argue that ERISA preempts any state regulation that protects consumers from overreaching subrogation clauses. In Texas, that means that insurance companies argue that ERISA preempts state law regarding the common fund doctrine and made whole doctrines, and that personal injury victims must reimburse insurance companies for the whole amount of their claim instead of partial reimbursement. We now often spend more time fighting with insurance companies over subrogation claims than fighting about the underlying case.

If the federal government expands its regulation of the insurance industry, these problems will only multiply. Now, the federal government could put in any legislation that they are not preempting state regulations, but given this administration’s history on trying to use preemption as a way to prevent lawsuits, the odds of that happening are slim and none.

For more on Secretary Paulson’s plan, read here:

For more of my thoughts on subrogation, read here:

  • A Subrogation Primer
  • Texas Supreme Court Votes Against Personal Injury Claimants
  • Personal Injury Subrogation, continued

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

Perlmutter & Schuelke, PLLC maintains offices in Austin, Texas. However, our attorneys and lawyers represent clients throughout the state of Texas, including Dallas, Houston, San Antonio, Forth Worth, El Paso, New Braunfels, San Marcos, Kyle, Buda, Round Rock, Georgetown, Lockhart, Bastrop, Elgin, Manor, Brenham, Cedar Park, Burnet, Marble Falls, Temple and Killeen. By Brooks Schuelke


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