Personal Injury


According to a story in the Houston Chronical (also reported on in the New York Times), Texas tort reformers are at it again.  On the horizon in the Texas Legislature this year are several bad and unneeded “reforms”.  One law being proposed is called “loser pays”.  It is an old idea with a deceiving moniker.  The law, as proposed in a draft by Governor Perry, would make the person who brings the lawsuit pay for the expenses and attorney fees of the other party if they ultimately lose their lawsuit.  That might sound fair to some, but the law is one-sided.  The only time the loser pays is when the loser is the plaintiff.  If the loser is the defendant, which is the case in a majority of lawsuits filed, the defendant is not required to pay expenses and not required to pay the winner’s attorney fees.  Not anyone’s idea of fair.  But fairness is not the point.   

The law is being proposed as a measure to stop frivolous lawsuits.  In the Times article, a professor at the UT School of Law said no serious studies on frivolous lawsuits have found that frivolous lawsuits are a real problem.  If the law is a solution to a non-existent problem, why are taxpayer dollars being wasted on this issue.  It is time for the politicians to get back to work and quit raising the lawsuit boogeyman promoted by insurance and business interest.  These special interest groups raise this issue every couple of years to promote their goal of limiting their personal liability and ultimately to shirk their personal responsibility to average citizens.

“Loser pays” is a measure designed to put fear in the heart of the average person who wants to assert their right to seek justice and make a claim.  Any attorney the claimant consults with will be required to tell the claimant that if there is an unjust outcome and they lose the case, they will owe the defendant their attorneys fees.  Even when someone feels they are right, they will be reluctant to bring a suit, out of fear that an already bad situation could possibly be made worse.  This is the response business and insurance lobbyists are looking for in this measure.  But business and insurance interests will never have that same fear, because the proposal does not ask them to pay costs if the person who brings the suit is successful.

Texas is also looking at regulating attorney fees.  We all know that big businesses and insurance companies can hire any lawyer they want.  In fact many insurance companies have lawyers on their payroll.  A regular person sometimes can’t afford to hire an attorney.  Contingency fees make it possible for the little guy to get legal representation on par with what big businesses can afford. 

Texas legislators want to cap contingency fees at a low-level.  Free enterprise is the cry of every legislator who would push this kind of bill and no one is suggesting a cap on what insurers and big businesses pay their lawyers.  But it is ok to limit what kind of representation the little guy can receive, while encouraging the deep pockets that would obstruct access to the system.  Think what would happen if the NBA decreed that half of the teams can pay as much as they want for their players and put a cap on what the other teams could pay.  Not a fair system.  But fairness (justice) is not the goal.

Advertisements

According to the AFL-CIO blog, an OSHA rule created to protect workers from asbestos hazards has been upheld by the U.S. Court of Appeals.  In 2003 a contractor in Houston, Texas hired 11 immigrant workers to perform an asbestos abatement job.  The contractor, Eric Ho, did not train the workers or give them appropriate protection, such as respirators.  A city inspector ordered the job stopped because of the asbestos violations, but the contractor made the workers perform the job behind locked gates, after hours; putting the workers at great risk. 

OSHA issued 22 separate violations to the contractor.  Eleven violations for not providing each worker with a respirator and eleven for not training the workers on how to properly work around asbestos.  A Bush Administration Commission overturned most of the citations, saying the contractor could only be cited once for the training violation and once for the respirator violation, consequently reducing the number of fines facing the contractor from 22 to 2.

OSHA subsequently re-worded the rules to clear up the issue, stating that separate citations can be issued for each worker who is not properly trained and separate citations can be issued for each worker who is not given a respirator.  The National Association of Home Builders sued the government, claiming OSHA did not have the authority to rewrite the rule.

In National Association of Home Builders C. Occupational Safety and Health Administration, the U.S. Court of Appeals for the District of Columbia Circuit ruled that OSHA was operating within its authority when it made the rule.  The dangers of working with asbestos have been known for many years.  It can cause cancers including lung cancer and mesothelioma, as well as asbestosis.  The ruling of the court, that the employer can be fined for each worker it doesn’t protect, gives OSHA a hammer to combat employers who don’t protect their workers appropriately.

Garlock Sealing Technologies has filed for bankruptcy, according to a story on the WSJ Blog.  The company, founded in 1887, produces sealing materials for various sectors, including the petrochemical industry, the chemical industry, the power industry, and the paper industry.  For many years, approximately 1907 to 1980, Garlock produced gaskets, packing materials, and cloth that contained asbestos.  Garlock has been a defendant in numerous asbestos cases. 

In court documents Garlock listed the value of their assets at the $500 million to $1 billion range, and their debts in the $100 million to $500 million range.  The company is asking the court to establish a bankruptcy trust to pay asbestos related claims.  The filing also covers the Anchor Packing Company, an arm of Garlock that also produced asbestos containing products. 

Asbestos is a mineral widely used in the early to late part of the 20th century in industrial settings.  Breathing in asbestos can cause scarring of the lungs, which is called asbestosis.  This disease can prevent the lungs from expanding properly and leads to shortness of breath and even death.  There is no known cure for asbestosis, other than a lung transplant.  Asbestos also can cause cancer.  The most deadly cancer caused by asbestos exposure is mesothelioma.

According to a report on LAW.COM, a New Jersey appellate court upheld a verdict of $30.3 million, awarded to a mesothelioma victim.  Mesothelioma is a cancer of the lining around the lung caused by exposure to asbestos. 

The suit was brought by the wife of Mark Buttitta, who died from mesothelioma in 2002.  Buttitta’s father worked at a GM warehouse where he came into contact with asbestos containing products, such as brakes and clutches.  Buttitta was also exposed to asbestos when he worked in a GM warehouse as a college student.

Several defendants were sued, but only two defendants, Borg-Warner Corp. and Asbestos Corp. LTD. were remaining in the case at the time of trial.  Borg-Warner claimed that their products were not at the warehouse where Buttitta worked, and the claim was hard to prove because Borg-Warner had previously destroyed records of sales of their products to GM facilities.  However, John Fronig, a former GM manager testified in a case in Texas that Borg-Warner was the “prime” supplier of clutches to GM from the early 60’s until the mid-80’s. 

ACL, a Canadian company, was a major asbestos supplier to GM.  They asked the court to find that there was no personal jurisdiction over the company, because they are Canadian.  ACL also refused to participate in discovery in the case and was sanctioned, by striking their answer and defenses in the case.  ACL lost their appeal on all issues.

The verdict, the largest known verdict in New Jersey history, included $8 million for pain and suffering, $2 million for loss of consortium, $9 million for lost earning capacity, $2 million for loss of services, and $3 million to each child for loss of parental care.

A jury in Cobb County, Georgia awarded a Home Depot customer $1.5 million for an accident that happened in 2005, according to a story on AJC.com.  The plaintiff, Larry Reece was injured when a pallet full of plywood fell from a forklift, 24 feet above the ground.  Reece was trapped under the wood after the accident.

The victim suffered from neck and spinal injuries and underwent surgery to repair herniated discs.  The medical expenses for the surgery to repair the disc injury were over $120,000.  Home Depot has faced numerous claims over the years from those injured by its “sky shelving”, merchandise packed on shelves high above the aisles where customers walk.

The Federal Government is mandating new safety standards for automobile roofs, the first such new standards in thirty years, according to the New York Times Wheels Blog.  Automobiles are currently required to have roofs that can withstand pressure equal to one and a half times the vehicle’s curb weight, with that pressure applied to one side of the roof only, up to a six thousand pound maximum.  Vehicles over 6,000 pounds are not currently regulated.

The new standard, to be implemented by the National Highway Traffic Safety Administration, is that the vehicle’s roof must be able to withstand three times the weight of the vehicle, with pressure applied first to one side of the roof and then to the other side of the roof.  Safety experts claim that the two sided test better approximates the conditions a vehicle experiences in a roll over situation.  The new standard also removes the six thousand pound cap on vehicles and brings vehicles in the 6,000 to 10,000 pound range under the regulations.

The NHTSA hopes that the tougher standard will prevent deaths from rollover crashes.  The Administration’s data shows 10,000 deaths annually from rollover crashes, under the current standard.  In the Administration’s press release, Transportation Secretary Ray Lahood states, “These new standards go a long way toward reducing deaths, but safety belts are the first, most important step everyone should take to protecting themselves and their families.” 

The phase in for the new requirements begins in September 2012.  The Administration has also mandated electronic stability control systems which will also help to prevent rollovers from occurring.

A jury in McClean County Illinois awarded the family of a deceased mesothelioma victim over $2 million, according to a story on pantagraph.com.  The woman, Juanita Rodarmel, was married to a man who worked at the Union Asbestos & Rubber Company (UNARCO) plant in Bloomington, IL in the 1950’s. 

Ms. Rodarmel’s husband carried home asbestos fibers on his clothes and Ms. Rodarmel was exposed to the asbestos fibers from his clothes every time she was his clothes.  The jury awarded $100,000 in punitive damages against Pneumo Abex, LLC and $400,000 in punitive damages against Honeywell International.  The lawyers for Ms. Rodarmel’s family argued that Pneumo Abex and Honeywell International conspired with other companies to suppress the facts about the hazards of asbestos.

Next Page »