NCAA Settles Its Own Concussion Lawsuit

I’ve written often about the lawsuits between the NFL and former professional football players regarding their concussions.  Now, the NCAA is settling (or at least trying to settle) its own lawsuit about sports-related concussions.

Under the proposed class action settlement, the NCAA will fund a $70 million pool of money to pay for former college athletes to undergo testing to determine whether they have brain injuries.  The settlement will also have the NCAA set mandated “return to play” policy that all schools must follow instead of letting each school have its own policy.  This would obviously help protect athletes in the future.

The settlement does not pay the athletes any damages for their concussions.  Instead, the athletes would still have to sue their former schools or other parties to recover those damages.  The test results that the NCAA is funding might be able to play a part in the eventual lawsuits.

This settlement is a long way from being final.  It has to be approved by a judge and there are a number of people who intend to object to the settlement on various grounds.  We’ll try to keep you posted because I think these type of developments are crucial to bringing public light to head injuries and they also help lead to better protocol for all levels of sports, not just colleges.

 

Here’s an ESPN news story about the settlement.

How Do I Settle A Claim With An Insurance Company Amicably?

This is another question I recently received.

A person was injured in a car wreck, they submitted a demand letter, and tried to negotiate, but the insurance company was stonewalling them.  What are they supposed to do?

There isn’t a good answer for someone in this situation.  Insurance companies may engage in stonewalling tactics that are designed to get you to accept less than the full value of your claim.

When you hire us, and this happens, our response is to file suit.  That’s the alternative and the hammer you can use to get a new adjuster, get a new perspective to the insurance company from a lawyer and to prove that you can enforce the claim.

But if you’re trying to represent yourself, you don’t have that option.  As a result, the insurance company, knowing that you don’t have a real alternative, doesn’t have an incentive to pay the full value of your claim.

This type of conduct is one of the reasons that insurance company studies find that claimants who are represented by lawyers do substantially better overall than those who try to represent themselves.

I am sorry to be the bearer of bad news to people in this situation.

Will Austin Ban Use of Cell Phones While Driving?

A lot of momentum seems to be developing for the idea that Austin will ban drivers from using hand-held devices while driving.  In February, the Austin City Council appointed a Distracted Driving Study Group to look at the problem of distracted driving.  On Monday, the study group released a memo recommending that the city council outlaw the use of handheld devices while driving.  There seem to be two main reasons for this.  One, using a hand held cell phone while driving can be distracting and dangerous.  Two, making it illegal to use hand held devices would make it easier to enforce the ban on texting whiile driving (now it’s difficult to tell is someone is texting or dialing a phone number).

I’ll keep you posted on the story as details emerge.  In the meantime, KXAN has done a nice story on the issue.  You can watch it below.

 

I Waited Two Months To Go To The Doctor. Do I Still Have A Case?

I received this question the other day, and I thought others might be interested in the answer as well.

The short answer is “yes.”  Just because you didn’t immediately go to the doctor does not mean that you were not hurt and that you don’t have a case.

But those types of delay do make presenting your personal injury claim much more difficult.  Insurance companies are looking for any small excuse they can find to not pay your claim.  And a “gap in treatment” (as described in the question) is one of the key factors they rely on to defeat claims.

That’s not to say that I agree with insurance companies or that a gap kills your case.  I know a number of people who just don’t like to go to the doctor.  They’ll suffer an injury and try to wait on the problem to resolve to see if they can avoid going to the doctor.  Others simply can’t go to the doctor as soon as they would like.  Perhaps they can’t afford a doctor’s visit, don’t have time to go to the doctor, etc.

So while this type of gap doesn’t mean you no longer have a claim, it can make your claim much more difficult.

How Long Will My Personal Injury Case Take?

This is a common question we hear, and it’s hard to give a great answer because the potential span is so large depending on a number of factors.  For instance, we might resolve some cases within a few months of opening the case, and we might resolve some several years after opening the case.  But the timing is all dependent on the various factors in the case.

The first big factor is how long it takes you to get better.  We generally don’t want to resolve a case until you’re either healed or the doctor tells you that you’re not getting any better.  We don’t want to be in a situation where we have settled the case and then you turn out to be hurt worse than we thought.  So the first factor is how long it takes you to heal.  Some clients heal in a couple of months, and for some clients, they don’t heal for a couple of years.

The second main factor is whether we have to file suit.  If we can resolve a claim without filing a lawsuit, then the case is usually finished much faster than having to pursue even a simple claim in a lawsuit.  Lawsuits are slow and time-consuming so a lot of times the lawsuit process is the cause of the delay in your case.

There may also be a number of other factors, such as whether the other party has insurance, how much insurance the other party has, how much the other party cooperates, etc.

While I wish I could promise you a quick, tidy process, lawyers who do that aren’t telling you the truth.

 

 

Posted on: July 28, 2014 | Tagged

I was hit by a drunk driver. Does that affect the value of my case?

This is a question that I’ve received a few times.  And the answer is, “Being hit by a drunk driver should increase the value of your case, but it doesn’t always.”

What do I mean?  Obviously, if the jury knows that you were hit by a drunk driver, they would get mad at the drunk driver and likely award you more money.  The trick is whether the jury gets to hear you were hit by a drunk driver.  Defense lawyers will go to great lengths to ask the judge to hide from the jury the fact that the driver who hit you was drunk or under the influence of drugs because knowing that might be prejudicial to the driver.   There are tricks the defense lawyer will use to try and make this happen.

Fortunately, there are a number of tactics for our side to help us increase the likelihood that the jury gets to hear that the other driver was drunk.  Unfortunately, there are too many plaintiff’s lawyers who don’t know these tactics.

If you’re hurt by a drunk driver, you need to do your homework and make sure your lawyer knows these tactics.  Ask your lawyer what he or she might do to help increase the odds that the facts regarding the other driver’s drinking are admissible.  Ask your lawyer what trial lawyer organizations he or she belongs to help stay educated on the evolution of these tactics.  Make sure the lawyer you want to hire is qualified to maximize the value of your claim.

Posted on: July 25, 2014 |

I fell in a parking lot because of broken pavement/sidewalk. Can I sue?

This question was posed to me recently, and the short answer is “yes.”

This is called a premises liability case.  In Texas, a customer can prevail in a premises liability case against a business if the customer can prove several things: (1) that the condition (here the broken pavement or sidewalk) posed an unreasonable risk of harm; (2) the business owner knew or reasonably should have known of the danger; (3) the business failed to use reasonable care to make the condition safe; and (4) the business failed to use reasonable care to warn the customer about the condition.

While these questions may seem simple, there are a lot of difficult issues hidden inside of them.  For instance, almost all premises cases have disputes about whether the condition was unreasonably dangerous.  This often requires expert witnesses who can talk about building codes or other rules and regulations that might apply and why failing to comply with those regulations is dangerous.

Additionally, when proving whether the business owner knew or should have known of the danger, arguments arise over how long the condition had been present.  In this type of case, where broken pavement or sidewalk is likely to occur slowly over time, the issue might not be important.  But if you’re suing a business over a spilled drink on a floor or something similar, then you have to prove how long the drink had been on the floor.  As you might imagine, that can be difficult.

There are other similar difficult issues that make this a much more complicated question than it might normally seem.  That’s why it’s so important to have a competent lawyer on your side when you’re hurt in these situations.

 

 

Posted on: July 24, 2014 |

Is Your Insurance Company Paying Fairly?

Last week, local news station KXAN ran a great story on the problems that consumers encounter trying to get insurance companies to pay their claims.  Unfortunately, I see this on a daily basis.  When you’re hurt or injured, insurance companies seem to employ the old deny, defend and delay tactics to try and minimize what you’re paid.

The person in this story was lucky.  After a battle, he thinks he received a fair payout without having to hire an attorney.  But most people who try to handle their own claims aren’t that lucky.  As lawyers, we know the tactics the insurance companies are trying to use against you, and we know the ways you can mess up your claim.  That’s why it’s reported that even insurance companies studies prove that claimants who have lawyers who can help guide you through the process end up with much higher recoveries, on average.

I urge you to watch the story below:

 

Posted on: July 15, 2014 | Tagged

Head Injuries: New Settlement In NFL Concussion Lawsuit

helmet smallYou may recall that the previous settlement agreement between the National Football League and a class of former players was scrapped by the judge, who was concerned that there wouldn’t be enough funds to fully compensate the injured players who sustained head injuries.

Yesterday, the parties entered into a new settlement agreement.  Unlike the last settlement, this settlement isn’t capped at any specific amount.  This ensures that any former player who develops a qualifying neurocognitive condition will be compensated for the injury.

This is an interesting way forward.  Obviously, we represent a number of clients who have sustained head injuries, so I know the ways that these types of injuries can affect someone.  But I’ve also done some work on class actions, and it’s highly unusual to craft a settlement that doesn’t have a cap on the damages.  It will be interesting to see how the case proceeds and whether the ultimate amount paid out will surpass the $765 million that was being set aside in the prior agreement.

Baseball, Hot Dogs and Injuries?

hotdogI love baseball, and I like hot dogs, and I was surprised to see them intersect in a personal injury case. But yesterday, I saw that they did.

Yesterday, the Missouri Supreme Court held that the “baseball rule”, which protects teams from being sued for fan injuries caused by events on the field, does not protect sports teams when their mascots cause injuries.

In this case, the Kansas City Royals mascot was throwing hot dogs into the stands.  One of the hot dogs hit John Coomer in the eye, resulting in him having two surgeries to repair his damaged eye.

Originally, the jury was instructed that being hit by the hot dog was an inherent risk of attending a sporting event.  But the Missouri Supreme Court noted that there is nothing inherent about wayward mascots at sporting events.  The Court noted that mascots aren’t a part of baseball; we’ve played baseball a long time without mascots throwing hot dogs, and we can continue baseball in the future without wayward hot dogs.

Legally, I have to think the court is correct.  Mascot shenanigans aren’t an inherent part of the game.  And while the hot dog incident almost prompts a chuckle, I’m sure no one would be laughing if a mascot did something more egregious, such as causing a golf cart to explode.  Those are not inherent risks of our national pastime, and mascots need to be careful, like everyone else at the game.

Perlmutter & Schuelke, LLP 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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