Virginia Beach Personal Injury Lawyer

Electrical Shock Injury In Hotel Shower Ends Commercial Pilot's Career--Settlement Just Before Trial

Rick Shapiro — Tue, 08 Jul 2008 21:31:23 GMT

By: Richard N. Shapiro, Shapiro, Cooper, Lewis & Appleton, P.C., Va. Beach, VA

Our Plaintiff client was a 47 year old pilot/captain for a commercial airline who piloted a 737 to a Virginia international airport on June 30, 2005 . Before piloting a similar jet on the next morning of July 1, 2005 outbound, pilot and the crew stayed at the Virginia hotel routinely used by the airline crews. The pilot was in excellent health and had recently passed a thorough FAA physical examination, less than six weeks earlier. The next morning, our client the pilot was taking a shower in his hotel room and while washing his hair with his hands directly above his head, when he received a serious electrical shock which essentially froze him in the shower. With his hands still frozen above his head, he lost consciousness and fell out of the shower, suffering some contusions. He testified that his heart was racing and was measured at 180 beats per minute following the shock. Upon regaining consciousness, he immediately called the hotel operator to report that he had been "electrocuted" in the shower. The hotel dispatched a maintenance engineer to the room, who, after observing the light fixture above the shower told the pilot that the fixture "doesn't belong in that environment," and promptly called the front desk and shut down the room due to "electrical problems." Pilot described the light fixture as an uncovered bulb in a ceramic based fixture that was flush mounted to the ceiling above the shower, protruding downwards. The hotel engineer disagreed, testifying it was a recessed "can" light fixture, only admitting that the flat plastic lens covers was missing, exposing the bulb to shower spray. He also admitted that the hotel had been having problems for the prior 2-3 months with the plastic covers of these light fixtures falling off and not having spare recessed light plastic covers available. The pilot notified management that he could not safely pilot the jet that morning, and rode in the jet's jump seat. During the flight, he began experiencing difficulty with his left eye. He initially thought his sunglasses were smudged and indicated it was like looking through wax paper. He subsequently developed a left occipital headache. Numerous physicians subsequently confirmed that pilot suffered from left optic neuropathy, and although his vision was 20/20 in both eyes when tested for his FAA examination on May 17, 2005, his vision deteriorated immediately after the shock injury to 20/60 to 20/80 range in his left eye. When the jet landed on July 1, 2005 , pilot went to the local emergency and his documented complaints at that time included dizziness, numbness and tingling in his extremities, headaches and decreased left vision. He subsequently developed issues with fatigue and with balance and coordination. His immediate lack of visual acuity caused him to fail a mandatory FAA physical and he is no longer qualified to pilot any commercial aircraft. His physician's testified that his injuries were permanent.

Plaintiff's suit contended that the hotel negligently, knowingly left an open light fixture directly over the area where hotel guests would be showering and spraying water in violation of the National Electric Code (NEC), which has been adopted by the state of Virginia . Also, pilot filed an extensive memorandum of law prior to the final pretrial hearing asserting that the electrical shock evidence presented a classic res ipsa loquitor case allowing an inference of negligence against the hotel, and additionally arguing that the hotel wrongly failed to document or retain the electrical fixture, as no pictures or written inspection report were ever produced until over a month later-and pilot contended the fixture had been altered in the meantime. In the suit, we named over 10 experts, including neuro-opthamologists, neurologists, electrical experts, vocational and economic experts, the latter experts calculating earning capacity of around $250,000 annual salary, leaving over three million dollars in lost earning capacity. The hotel denied any negligence, denied that the pilot suffered any electrical shock, and claimed the pilot's symptoms were magnified or caused by pre-existing conditions, and also listed a wide array of medical and liability defense experts.

Hotel/Innkeeper Liablity

In the year after we filed suit for our client, the Virginia Supreme court clarified that hotels are held to high standard of care applicable to common carriers, in the case of Taboada v. Daily Seven, Inc., 626 S.E.2d 428 (Va. 2006). In Toboada, the court stated:

We have held that neither the innkeeper nor the common carrier is an absolute insurer of the guest's or the passenger's personal safety.. Nonetheless, we have held that the duty of care imposed on common carriers is an elevated duty that requires them " `so far as human care and foresight can provide . . . to use the utmost care and diligence of very cautious persons; and they will be held liable for the slightest negligence which human care, skill and foresight could have foreseen and guarded against. Given the nature of the special relationship between an innkeeper and a guest, we hold that it imposes on the innkeeper the same potential elevated duty of "utmost care and diligence" [as applies to common carriers].

Taboada v. Daly Seven, Inc., 626 S.E.2d 428, 434 Va.2006) (emphasis supplied). Pilot asserted that the statements of the hotel's maintenance engineer alone were proof that the hotel did not exercise its elevated duty of care to provide for a safe shower light fixture.

Res Ipsa Loquitor Evidence

While pilot's electrical experts offered the theory that his shock occurred when his hand slightly grazed an exposed shower light bulb, pilot also argued for a res ipsa loquitor jury instruction which would supply an inference of hotel negligence from the circumstances alone. Res Ipsa is applicable to a narrow set of circumstances, and as outlined by the Virginia Supreme Court:

In order for the doctrine to apply in a given case, the instrument causing the injury must have been in the exclusive possession of the defendant, and the occurrence must have been of such a nature that it can be said with reasonable certainty that the accident would not have occurred in the absence of negligence on the part of the defendant. It must be further shown that the evidence of the cause of the accident is accessible to the defendant and inaccessible to the injured party.

Stein v. Powell, 124 S.E.2d 889, 203 Va. 423, 426 ( Va. , 1962) (denying application where child injured by shattered mirror accessible to other invitees).

Pilot contended at the final pretrial court hearing that his electrical shock injury was a classic res ipsa circumstance, and cited a number of analogous decisions: cases involving injuries inflicted . by steam, electricity, fire, gas, complicated industrial machinery, and other dangerous instrumentalities furnish the clearest instances of the use of the doctrine of res ipsa loquitur. Robison v. Cascade, 72 P. 3d 244 (Wash. App. 2003)(emphasis supplied) (applying res ipsa in electrical shock case involving a truck trailer loader); Kieffer v. Weston Land, Inc., 90 F. 3d 1496 (10th Cir. 1996) ( applying res ipsa in electrical shock case involving vending machine). Pilot noted that thousands upon thousands of hotel guests take showers in hotels daily, and it cannot be disputed that serious personal injury or death caused by electrical shock should never occur while a hotel guest is routinely shampooing their hair in a hotel shower. The pilot checked into his hotel room, discovered no apparent problem with the electrical system or the electrical power. Prior to turning over the hotel room to the pilot, the hotel's cleaning personnel were the last persons to have access to the room and to have inspected it. There was never any suggestion by the hotel of a third-party tampering with the electrical source, or a third-party or the pilot tampering with the fixture over the shower, and supplying the overall electrical power supply is exclusively within the hotel's control. The court made no ruling or finding on res ipsa loquitor at the final pretrial hearing, given that offering such an instruction would be dependent on the evidence admitted later at trial.

Missing Evidence Inferences

The hotel attacked the pilot's electrical expert's theories, and moved to exclude the expert opinions as unreliable and suspect, given that the pilot's two experts did not conduct tests on what the pilot contended was the same light fixture, or under reliable similar circumstances. Pilot, in response, argued that the hotel completely failed to preserve or maintain the main, known material evidence (the light fixture, whether in the ceiling area or preserved with the entire fixture and its wiring apparatus). This is so despite its awareness from the very first hour after the incident that the pilot was shocked in their shower. The hotel admitted that the room remained out of use for well over a month, but it produced no pictures, inspection reports, or confirmation of what if anything was done to alter the fixture in the first days or weeks. The hotel contended no changes were made, but when pilot's expert was permitted an inspection months later, pilot contended the fixture was entirely different.

Pilot argued that the limitations or less than ideal expert electrical evidence foundation was due to hotel's failure to preserve relevant evidence, and pilot should not be penalized. Pilot cited to a similar circumstance which arose in an electrical shock case involving a bakery company employee who claimed electrical shock from a vending machine. Kieffer v. Weston Land, Inc & Coca-Cola, 90 F. 3d 1496 (10th Cir. 1996). Employees of the defendant claimed they checked the vending machine the same day and that neither relevant machine had any electric current flowing that could cause a shock. Id. at 1498. The defendant in Kieffer initially discarded the subject vending machine, then relocated it, but it did not have the electrical cord any longer and therefore was in a different condition. Id. at 1499. In the similar Kieffer case, defendants asserted the claim that the plaintiff's electrical expert opinions were lacking and unreliable, but the court in Kieffer stated:

[o]bviously, had the plug not been removed from the machine, Dr. Oliver's [electrical expert] conclusions regarding the likelihood of shock in relation to a defective plug would have been either far more certain or possibly even unnecessary. The fact remains, however, that the missing evidence which created the need for the testimony which [defendant] now finds objectionable was caused by [defendant] itself. Defendant argues that the loss of evidence by a party does not allow a negative inference against that party unless it is shown that it acted in bad faith, citing Mason v. E.L. Murphy Trucking Co., Inc., 769 F.Supp. 341, 345 (D.Kan.1991) and Lewy v. Remington Arms Co., Inc., 836 F.2d 1104 (8th Cir.1988).. Plaintiff was entitled to produce the relevant evidence that defendant removed the machine a few days after the incident and that when defendant produced it over a year later the plug was gone. Defendant offered an explanation for the missing plug, suggesting it was caught in the truck bed when the machine was taken to the dump, but the jury had the right to reject that explanation.

The evidence provided a factual basis for Oliver's [electrical expert] testimony about how an electric shock might have occurred. The district court correctly ruled that the jury was free to accept or reject the expert's opinion in deciding, based on the proof provided by plaintiff, whether defendant's Seven-Up machine was the source of his injury...

The pilot also pointed to the Fourth Circuit decision in Silvestri v. Gen. Motors Corp., 271 F. 3d 583 (4th Cir. 2001) where the plaintiff failed to preserve the vehicle that was the basis of a product liability claim against GM. The Fourth Circuit there stated:

In the case before us, the conduct of the spoliator may have been either deliberate or negligent. We know that Silvestri's attorney knew that the vehicle was the central piece of evidence in his case against General Motors and that he had been reminded that this piece of evidence should be preserved or that General Motors should be notified. As it turned out, the vehicle was not preserved, and neither Silvestri nor his attorneys notified General Motors of Silvestri's claim until almost three years after the accident; by then, the evidence had been destroyed by the repair of the vehicle..

Id. at 593-594. In Silvestri, the 4th Circuit affirmed the harsh sanction of dismissal of the claim, and discussed lesser sanctions. Id. Pilot asserted that courts have a wide range of inherent powers to assure that the courtroom is not a forum to restrict the search for truth--well short of dismissing a claim or defense, and allowing pilot's electrical experts to offer their electrical theories, supported by pilot's testimony, was proper, and defendant's motions to exclude should be denied. After hearing all the arguments, the District Court denied the hotel's motions to exclude pilot's electrical experts, and refused to dismiss the NEC negligence per se count of the complaint, but made no pretrial ruling on the impact of any missing evidence.

Judicial Settlement Conferences

The court ordered two settlement conferences: the parties were unable to settle the case prior to the final pretrial hearing, but at the second settlement conference, after the pretrial hearing decisions and about a week before trial, the parties settled the case for 1.5 million dollars, in exchange for full and complete settlement of all claims.

What we learned from this case, as the pilot's lawyers, was that the Judge at the final pretrial hearings apparently agreed with our arguments that no hotel guest should suffer an electrical shock in a hotel shower--whether a pilot or any other hotel guest. At the hearing, one of the hotel's lawyers explained to the Judge that one of the hotel's defenses was that the pilot may have never suffered any shock. The judge poked fun at him, and sarcastically asked him whether he thought it might have been a bolt of lightning instead! The Judge later refused to exclude any of our electrical expert opinions, and subsequently the case was settled with assistance of a Magistrate Judge at the second settlement conference.

Originally posted at InjuryBoard by Rick Shapiro

Conrail Rocked by 2.6 Million Diesel Exhaust Asthma Verdict

Rick Shapiro — Thu, 08 May 2008 19:52:40 GMT

In late April 2008, an Ohio state court jury ordered Conrail to pay $2.6 million to its former locomotive engineer, for negligently causing his diesel exhaust asthma lung disease. Frank Battaglia, worked in the Detroit, Michigan rail yards for Conrail for 23 years as a railroad engineer, before he was eventually diagnosed with diesel exhaust fume asthma. Ohio based attorneys represented Battaglia, and Conrail retained Pittsburgh, Pennsylvania lawyers who specialize in defending railroads, including defending claims involving diesel fume type cases.

Apparently, the jury bought the worker's side of the serious lung damage story and rejected the Conrail side.

Battaglia's lawyers presented evidence that his lung disease was the result of inhaling fumes hundreds, if not thousands of occasions while he worked as a railroad engineer usually involving his location inside locomotive engine cabs. His attorneys argued that federal railroad administration (FRA) regulations prohibit diesel exhaust fumes from entering into the locomotive engine cab, and that this regulatory violation directly led to lung disease in Mr. Battaglia.

Conrail is a subsidiary of Norfolk Southern, and one of Norfolk Southern's medical doctors also gave testimony to defend Conrail, along with other doctors that were specially retained on behalf of Conrail. Conrail denied the worker suffered any disease from diesel fumes.

The jury received testimony for an entire week, and then deliberated five hours before returning the $2.6 million verdict in favor of Battaglia. This is the second major verdict attorney Leizerman has obtained in a diesel exhaust fume trial, with an earlier verdict for another railroad locomotive engineer several years earlier, who sued Norfolk Southern. That earlier verdict was upheld on appeal in the state of Ohio appeals court system.

Rail workers most exposed to diesel fumes are railroad locomotive engineers, railroad conductors, railroad carmen, and railroad shop workers who have worked around diesel engines for decades. Medical experts have documented an increased incidence of lung cancer in railroad workers with these long-term exposures to diesel fumes as well. Our law firm has received an increasing number of inquiries from railroad workers who believe they may suffer diesel asthma lung disease. An experienced occupational medical physician can determine if your particular form of lung disease symptoms are consistent with this often undiagnosed form of "diesel asthma," and the doctor must also evaluate any other occupational exposures to dusts, fumes and similar irritants.

The Environmental Protection Agency, in 2008, finally put into effect new regulations governing diesel engine emissions in railroad locomotives as well as trucks and other types of motors using diesel fuel. Soon, there will be monitoring requirements for what types of emissions are coming from the engines, but this will have no affect on workers who may have been exposed in the past. There have been a number of medical journal articles discussing the pervasive adverse health affects of diesel fumes, and the awareness of the dangers of long term exposures have now been well documented. The public is just now starting to understand the issue.

My viewpoint: The serious long term effects of diesel exhaust fumes are well documented. The medical community and the public are paying more attention.

Originally posted at InjuryBoard by Rick Shapiro

Wrongful Death and Medical Malpractice-A Lethal Mix

Rick Shapiro — Mon, 05 May 2008 09:07:48 GMT

Note: see also medical malpractice and automobile accident categories.

It is whispered that the nurses that really "care" about their patients will only go so far to protect a negligent doctor or hospital from "whistleblowing" --when they know malpractice has occurred and ultimately contributed to a wrongful death. Will a nurse "whistleblow" even when they worry that they could be fired or disciplined for notifying someone of the truth?

Here's a true story that you won't believe: a 73 year old Reverend was in the operating room for back surgery in Hawaii. His surgeon, Dr. Ricketson, realized once he had begun the surgery that the two titanium rods he needed for the procedure were nowhere to be found. He would need to wait two hours to get the rods from the medical supply company, but he noticed that the shaft of the screwdriver he was using was "about" the right size. He testified the patient would lose a lot of blood if he hadn't acted quickly.

Dr. Ricketson decided to use the screwdriver, and cut it to size with a surgical saw, and carried on with the procedure, inserting surgical screws through the makeshift screwdriver shaft.

Unfortunately, the steel shaft snapped in the reverend's back several days after the surgery, causing several more surgeries and he died two years later from surgical complications. His family hired a injury lawyer to look into the medical care.

Based on the testimony of a whistleblower nurse, several nurses tried to first talk the doctor out of using the screwdriver shaft, and then later one nurse argued that the family needed to be TOLD of the substitution of the screwdriver part, but the nurse said she was told to NOT tell the family anything.

The nurse was morally outraged. She had the courage to bring the truth out.

Then all the parties blamed each other. The medical supply co. said it had delivered the rods, and the hospital blamed the supply co. Also, the hospital claimed it was not responsible for the unusual decision of the doctor, but the family's lawyers proved that the hospital had allowed the doctor in question to stay on the hospital staff despite several disciplinary actions against him, including his known prior addiction to narcotics.

Evidence was introduced at the jury trial also that stainless steel has not been approved for implantation, though titanium has.

In March, 2006, the Hawaii jury arrived at a 2.2 million dollar verdict for compensatory damages, and 3.4 million dollar verdict in punitive damages. The case name was Iturralde v. Ricketson.

In many states, insurer's and doctor's are seeking arbitrary caps on damages in medical negligence cases, or outright immunity against various types of claims. Injury attorneys argue that "caps" on damages will only protect insurance companies, and will certainly not help consumers and patients. As for helping doctors, the best way to keep the medical system safe and functioning well, is to allow suits against terrible doctors like this one who "freelanced" on a trusting victimized Reverend. And lets not forget to thank a nurse who had courage and a conscience.

Originally posted at InjuryBoard by Rick Shapiro

Radioactive Exposures To Railroad Workers Explored

Rick Shapiro — Mon, 05 May 2008 09:00:46 GMT

Note: see also Workplace Injuries and Mass Transit categories.

Our law firm, Shapiro, Cooper, Lewis, and Appleton, has a special concentration in railroad injury matters, as well as all forms of personal injury. We have recently been retained on cases involving railroad workers who have developed cancer and other radiation related illness and disease as a result of exposure to radiation and radioactive substances while working for railroads that routinely transported cargo into and out of nuclear weapons facilities while working as railroad engineers, conductors or even as railroad track maintenance workers. In a number of areas of the country, nuclear weapon facilities required all kinds of uranium and radioactive material in order to build the often secret nuclear weapons. It is very common to have the primary source of transport of these materials and byproducts to be by railroad/train. Just as one example of many, there is evidence of ground contamination by radioactive substances in many areas outside of Oak Ridge weapons facilities in Tennessee (also often called Oak Ridge National Laboratory). The government Department of Energy, in an official report in the 1990's, on the ground contamination near Oak Ridge, concluded that the radiation originated from radioactive sources within concrete casks, transported years earlier by rail. It is clear that even concrete casks cannot contain all "low level" radiation emissions.Mostly beginning in the 1990's, there was an increased awareness of the potential dangers of what had historically been called low level radioactive waste being associated with many sorts of cancers. Thyroid cancer is very commonly associated with radiation exposure but there are many other cancers that are also associated with excessive exposure to radiation or ionizing radiation. Our office has reviewed a number of government reports that we have obtained under the Freedom of Information Act relating to radiation and toxic substances cleaned up from areas around Oak Ridge. The Department of Energy has actually paid for many clean ups around Oak Ridge, including at various scrap yards, and even on the CSX spur, which directly lead to Oak Ridge. Railroad workers commonly handled switching of the Oak Ridge waste materials, both in and out of the Oak Ridge National Laboratory. Most people realize that the first nuclear weapons were largely made at Oak Ridge as part of the top secret Manhattan Project.
Another site that has been the subject of contaminated radioactive clean ups as well as clean up of various other toxic substances is the Paducah facility in Kentucky, which also contributed many parts and components related to secret nuclear and chemical weaponry. There have been reports and newspaper articles relating to various types of contamination arising from Paducah, Kentucky, and also there have been concerns over many byproducts associated with these weapons that are extremely toxic substances. Some of these include Uranium, Hexafluoride, as well as Phosgene. All of these substances are highly toxic substances that are associated with cancers.
Radiation has been known since the time of the 1940's to present ultra hazardous dangers to humans. Even when transporting low level radioactive waste, special protections must be employed to any workers associated with these known highly toxic substances. Many years ago the Department of Energy or Nuclear Regulatory Commission provided guidelines and standards for potential exposure limits for radioactive substances. Later, the Occupational Safety and Health Administration (OSHA) has also been involved in regulating radioactive substances and further, with regard to railroad activities the Federal Railroad Administration (FRA) has relatively new regulations pertaining to radioactive materials although many of the regulations have been passed since the circumstances of September 11.
When a railroad worker has a disorder or cancer believed to be associated with the exposure to radioactive substances, careful analysis must be made by a doctor specializing in occupational medicine and it is important for a railroad injury lawyer to be familiar with the types of toxic substances or radioactive exposures that a railroad worker may have been exposed to while working for any particular railroads. Careful review of the occupational history is necessary, careful selection of a doctor with familiarity with radioactive exposure is also required. Other types of experts may be necessary in these types of cases, such as an epidemiologist, who is important to analyze statistical information relating to cancer rates relating to such exposure, and also a certified industrial hygiene expert would be an important expertise in any particular case to determine whether appropriate workplace safety measures were taken.
Railroads are fairly large companies and have always maintained a medical department. Railroad claims departments also keep up very carefully with industry trends and medical conditions. It is always incredible to learn as a railroad injury lawyer representing railroad workers how few important workplace safety measures were taken by railroads and this would include the most basic protections against the toxic potential exposure to highly radioactive substances being transported by railroads.
Several railroad workers that this author has interviewed explained that no respiratory protection was provided to railroad workers working in and out of certain nuclear weapons facilities, even though the particular railroad in question knew that only by products of radioactive weaponry were being transported either in or out of the facility. Inside the plant workers may have been wearing space suits, but as soon as the train car crossed the threshold and was moved by the railroad, no radioactive exposure safety measures were employed by the railroad moving the same materials.
With increased knowledge of the types of cancers associated with radiation, and new scientific and medical techniques, it may be increasingly easier to associate certain types cancers and occupational exposures with the lack of workplace safety measures by railroads.

Originally posted at InjuryBoard by Rick Shapiro

Will Motorcycle Airbags Be the Future of Cycling Safety?

Rick Shapiro — Mon, 05 May 2008 08:38:08 GMT

Note: see also automobile accident category

Honda Motor Company recently announced that it is going to offer an airbag on one of its expensive Honda Gold Wing motorcycles for the next model year. Likewise, Yamaha Motor Corporation is developing an airbag system and is using a scooter with the airbags to research and develop the potential product, according to Yamaha's website. Can motoycycle airbags really prevent significant crash injuries? Read on....

A spokesman for the American Motorcyclist Association said that some would call it safety, some would call it risk management. Whatever you want to call it, I applaud the motorcycle manufacturer's efforts. More and more Americans are buying motorcycles. Increasingly high gasoline prices are also driving increased motorcycle sales but with increased motorcycles on the highways comes increased personal injuries, and with those injuries comes more product liability suits against the manufacturers, and the companies may be feeling the "heat" of faulty product lawsuits.

Let's be realistic, whether you have a helmet or not, if you're riding a motorcycle you are fairly unprotected in case of a serious crash with a car or truck. Although motorcycles were only 2% of all registered vehicles in calendar year 2004, they made up 9.4% of all highway deaths, nearly double the 5% in calendar year 1997, according to government statistics.

The Honda airbag system has crash sensors attached to the front fork of the motorcycle. These sensors detect rapid deceleration and send information to a computer which determines whether a crash is likely occurring. The whole process only takes a fraction of a second. The airbag system is designed to stop a driver's body from striking the whatever the motorcycle has struck and to reduce the chances of the operator being thrown over the handlebars of the motorcycle. It is not presently designed to protect side or rear impact crashes or to protect passengers on the motorcycle. Honda knows from its own studies that more than half of the motorcycle crashes that caused deaths occur when the front portion of the motorcycle strikes another vehicle or object. Honda has already tested to see if the airbag will deploy accidentally, and if it so-what will happen. Honda claims that the airbag did not the driver backward, injure the driver, affect the driver's vision, or impact his travel on the highway. Apparently the bag deploys fairly low on the driver's torso, and is designed not to block vision but I have real questions about those supposed findings in the Honda tests.

Will an available airbag cause riders to abandon a helmet, which is a vital safety piece of equipment? Probably not because most helmets are required under state laws anyway.

Motorcycle operators face special challenges involving safety. All motorcycles obviously are smaller than a regular sized car or truck and often can seem invisible in the rearview or side view mirror of cars and trucks on the highway. Most motorcyclists are safe drivers and are often struck by negligent or careless car operators, and obviously in some circumstances the opposite is true. There are also some special state laws and regulations applying to motorcycles involved in accidents which can be relevant in any e personal injury case arising out a motorcycle crash. Our firm is involved in a number of these cases and can supply general or specific information to you or a family member who has had an injury or question regarding such an accident.

Originally posted at InjuryBoard by Rick Shapiro

Tractor-Trailer Accidents-Danger on the Highways

Rick Shapiro — Mon, 05 May 2008 08:28:12 GMT

Note: see also the automobile accidents category.

Big rigs, large trucks, semis, tractor trailers, and 18 wheelers are some of the ways that we refer to the giant, automotive machinery that runs 24 hours a day on our highways in Virginia and throughout the United States.

The trucking industry earned 610 billion dollars last year. Commercial trucking is critical to move goods to and from our region's cities including Chesapeake, Virginia (VA), Suffolk, Virginia (VA), Virginia Beach, Virginia (VA), Hampton, Virginia (VA), Norfolk, Virginia (VA), Williamsburg, Virginia (VA), and Newport News, Virginia (VA). One of the costs to society of all these big rig trucks are accidents that kill or injure 1 person in the U.S. every 16 minutes. When a tractor trailer hits someone in a passenger vehicle and a wrongful death occurs, it is nearly always the person in the car, van, or SUV that gets killed, not the tractor trailer driver. As the demand for tractor trailer drivers goes up, the industry is forced to overwork its existing truck drivers or take less qualified truck drivers into the commercial trucking industry.

The causes of truck accidents include drivers who were tired and those who are abusing alcohol or drugs when on the road. Traditionally many companies look the other way as their drivers cut corners, including speeding or improper maintenance of vehicles, in order to improve their bottom line. Federal Motor Carrier Safety Regulations of semi trucks and big rig operators have a hard time to keep up with huge volume of freight moved on the highways by truck. Even though then the Federal Motor Carrier Administration put in new hours of service regulations to prevent sleepy drivers on the road, driver fatigue is still the likely cause of 20-40% of truck crashes.

If you or a loved one is hurt by a tractor trailer accident you should contact an attorney who has experience in dealing with the complicated legal issues involved in trucking accident litigation. These cases involve lots of specialized issues and rules. You should hire an attorney who focuses his or her practice on the biggest transportation cases. There are all sorts of specialized laws including insurance law, which governs interstate commerce with trucks that don't apply to regular passenger vehicles. [Although many lawyers think they can handle a car accident case even though that is not what they regularly do, an attorney should not dabble in a trucking wreck case. If you Google an attorney and he advertises that he also does divorces, wills, contracts, and traffic court, beware.] More importantly, the personal injury lawyer handling tractor trailer accidents must know all of the special factual and evidentiary issues that come up in the context of these high stakes cases.

At Shapiro, Cooper, Lewis, and Appleton, we do nothing but injury/death cases and emphasize in our practice the worst injuries and wrongful death involving trucks and trains. We are used to dealing with the Federal Safety Regulations that apply in the transportation industries for railroads and trucking companies. We hold licenses from various states including Virginia (VA), North Carolina, South Carolina, West Virginia, Washington D.C., and Kentucky. We are used to handling cases that involve multiple state's federal law, and complicated semi truck issues. Take a look at our real case results section on our website which is www.hsinjury.com. I certainly hope that no one in your family ends up being one of the statistics about trucking accidents. However, if you do, I hope that you will consider us to be your experts in the field of trucking and tractor trailer collision accident litigation.

For more information on this subject, please refer to our section on Tractor-Trailer Accidents.

Originally posted at InjuryBoard by Rick Shapiro

Nursing Homes Hiding Assets To Avoid Victim Negligence Liability

Rick Shapiro — Mon, 05 May 2008 08:25:53 GMT

Note: see also Medical Malpractice category.

In a recent article in the American Bar Association Journal published in October 2006, written by Terry Carter, the article explores how Texas has passed massive tort reform of its medical malpractice laws. The massive overkill championed by President Bush when he was governor, Texas style, places a maximum of $250,000 recovery on non-economic damages (pain-and-suffering). As Carter notes, these caps on what is called non-economic damages affect the elderly and the poor esspecially hard, since they have a very difficult time showing lost earning power under economic damages, which are not capped under the Texas law.

Economic damages are lost wages, lost earning capacity, and projected medical expenses, for examples.

Given this massive Texas tort reform overkill, Carter discusses that many nursing homes inside Texas are only providing $250,000 insurance policies. If a senior citizen is the victim of massive nursing home malpractice, the nursing homes essentially insulate themselves against any major claims by keeping no assets in the company that owns the nursing home except for the insurance policy. If their gross negligence kills a senior citizen, and they are sued for a wrongful death claim, the nursing home company merely shrugs its shoulders and says sorry we don't have enough coverage, and by the way, our defense attorneys fees come out of that $250,000 policy also.

Not only is this Texas style tort reform only hurting victims, while ballooning the profits of insurance companies, it is sending the wrong message to the medical community because it is insulating hospitals, and in some cases, physicians, against the serious financial penalty associated with being sued for carelessness. Let's remember, even lawyers can be sued for malpractice without ceilings or caps, and one of the reasons for our civil justice system is to force all defendants (doctors or others) to make safety changes or improvements to avoid the financial penalties. We all know this is better than the old "eye for an eye" uncivilized form of justice that still prevails in many less civilized nations.

For example, the Commonwealth of Virginia has a medical malpractice ceiling, which is fairly restrictive. However, the Virginia law does not set a maximum on non-economic damages, which is the most discriminatory tort reform limitation because it hurts the poor and elderly who may not be working and may not have provable economic losses.

What is most stunning about public opinion, is that the insurance companies and big corporations have convinced a hug number of consumers and blue-collar workers that tort reform helps them! By planting false claims of big recoveries in the news media and on the Internet, the lobbying groups supporting insurance companies and large corporations influence public opinion because your typical consumer does not plan or conceive that they will have a medical malpractice claim or injury claims and end up being limited unfairly by the changes to the laws supported by the insurance companies and big companies. The truth of the matter is that your typical consumer and average "Joe" is not organized on any civil justice issues, but the insurance companies and big corporations are constantly lobbying their legislators for changes to the laws that will help their side. When a consumer wakes up, it's way too late, such as when their family member has a terrible accident and is told by a lawyer such as myself about the massive limitations on their recovery.

One of the legislative changes that many states need to enact is to require a minimum amount of insurance for all medical professionals, hospitals and nursing homes. It appears to me that the states are going to catch up fast with these nursing homes that are hiding all of their assets and keeping inadequate insurance limits. The bottom line is that the tort reform medical malpractice "crisis" has been a massive sham that has used falsehoods to influence the public.

Originally posted at InjuryBoard by Rick Shapiro

About Brain Injury and Spinal Cord Injuries in America

Rick Shapiro — Mon, 05 May 2008 08:22:47 GMT

Note: see also category Head & Brain Injuries.

Brain injury is a major cause of death and disability of people under age 45 and a significant medical/legal issue in tort and insurance law today. According to the Brain Injury Association of Virginia (VA) 28,000 visits to an emergency room occur in Virginia (VA) each year as a result of traumatic brain injury. Across the U.S. traumatic brain injury (TBI) costs over 56 billion dollars every year.

Brain Injury Association of Virginia (VA) provides information to the Virginia Legislature on behalf of family members and people who suffer from brain injury. The organization also provides a toll free helpline for people to provide assistance in coping with this difficult and often misunderstood disease. Their toll free line is (800) 334-8443. According to the Brain Injury Association of Virginia (VA) website, there are over 151,000 Virginians living with long term problems from brain injuries. Because of the large number of members of the Armed Services in Virginia (VA) the issue is particularly important in this state. One of the main types of injury that our soldiers come back from Iraq with are brain injuries as a result of both open head injuries and closed head injuries from improvised explosive devices.

Attorneys handling personal injury and wrongful death cases in Virginia (VA) have become increasingly aware of the prevalence of brain injury in recent years. Clients can suffer life threatening and catastrophic brain injuries in car accidents, motorcycle accidents, truck accidents, slip and fall injuries, trip and fall injuries, bicycle accidents, off road accidents, medical malpractice accidents, and products liability cases like defective ladders. Each of these areas of these personal injury and wrongful death cases may well involve brain injury to the client. Knowing how to identify cases of brain injury and to properly handle them in a Virginia (VA) lawsuit is key to competent representation. To learn more about this subject, please visit our section on Head and Brain Injuries.

Originally posted at InjuryBoard by Rick Shapiro

Diesel Exhaust & Cancers-Long Term Railroad Exposures Linked to Diseases and Cancers

Rick Shapiro — Mon, 05 May 2008 08:20:43 GMT

Note: see mass transit category for many rail industry articles.

This article discusses railroad worker long term diesel exhaust fume lung disorders, as well as medical studies relating to diesel fume lung diseases and lung cancers, and another related article in this series covers new federal regulations that are clamping down on excessive railroad locomotive engine diesel fumes, as well as historical knowledge and diesel exhaust lung disease legal cases against railroads such as CSX and Norfolk Southern over the last several decades.

There is a growing body of evidence that long-term railroad worker exposure to diesel exhaust fumes can lead to a condition called "diesel asthma" a form of COPD, and additional evidence shows an increased incidence of lung cancer rates among railroad workers/employees. Railroad worker injury claims against their employer-railroads fall under a federal act called the Federal Employers Liability Act. This article discusses railroad worker long term diesel fume lung disorders, as well as medical studies relating to diesel fume exposure, and another related article in this series covers new federal regulations that are clamping down on excessive railroad locomotive engine diesel fumes, as well as historical knowledge and legal cases against railroads such as CSX and Norfolk Southern over the last several decades.

What is diesel smoke or diesel exhaust fumes?

Diesel exhaust, also called diesel smoke or diesel fumes is a chemical mixture containing literally hundreds of compounds, including sulfur dioxide, nitrogen oxides, poly-systematic hydrocarbons, benzene, and many other compounds. Many of these individual particulates are known carcinogens, and have been known cancer-causing agents for over 30 years. In the railroad industry, diesel fuel runs nearly all locomotives, and has since the 1960's. When the diesel fuel is combusted, the chemicals change. They are changed into a gaseous state, and they are carried through the air by what are known as particulates. Particulates are the part of diesel exhaust fumes and diesel smoke that can be seen. But some particulates are so small that they cannot be seen and some of these get into the tiniest part of the lung tissue, deep in the lungs. Some of these dangerous chemicals can damage, inflame and destroy lung tissue. Also, the irritation over time can cause "hypersensitivity" disorders.

According to a scholarly 2001 American Cancer Society medical article (also published at CA Cancer J Clin 2001; 51:193; doi: 10.3322/canjclin.51.3.193), authored by Doctors Howard Frumkin and Michael Thun:

While diesel engines can operate with less highly refined fuel and consume less fuel per unit of work performed, they typically emit more particulate mass than catalytically equipped gasoline engines. Diesel engines are the predominant source of industrial power throughout the world for engines up to about 5,000 horsepower. A much larger percentage of passenger vehicles in Europe are powered by diesel engines than in the US.
The exhaust from diesel engines consists of both gas and particulate fractions, each of which is composed of thousands of different substances. The gas portion of diesel exhaust contains primarily carbon dioxide, carbon monoxide, nitric oxide, nitrogen dioxide, sulfur oxides, and hydrocarbons, including polycyclic aromatic hydrocarbons (PAHs). PAHs are produced as pyrolytic products during the combustion of any fossil fuel, including diesel fuel.

The particulate portion of diesel exhaust, also known as soot, is mainly composed of elemental carbon, organic material (including PAHs), and traces of metallic compounds. Thus PAHs are found in both the gaseous and particulate fractions of diesel exhaust.

Emissions of organic compounds from gasoline (both leaded and unleaded) and diesel engines are qualitatively similar, but there are quantitative differences. Older, light-duty diesel engines (automobile and light trucks), for instance, can emit 50 to 80 times more particulate mass, and heavy-duty diesel engines emit 100 to 200 times more particulate mass than catalytically equipped gasoline engines, although the difference has decreased substantially with newer models. Gasoline engines without catalytic converters produce a similar quantity of PAHs compared with diesel engines.
There are a number of railroad worker jobs that can expose workers to repeated and continuous diesel fume exposure, including brakeman, switchman, engineer, conductor, diesel engine and locomotive repair shop workers and carman/car repair workers, to name the most obvious. This type of work, over many years, can lead to various types of lung diseases and lung disorders, including aggravation to chronic obstructive pulmonary disease conditions (COPD), aggravated asthma, and in some cases exposure has been linked to cancer.
Workers have described, over many decades, how diesel exhaust fumes and diesel smoke can be seen, can be felt (while breathing), and can even be tasted, on the tongue after prolonged exposure. But most railroad workers are not aware of the long term, permanent lung disease associated with this toxic exposure.

Where and how are railroad workers exposed?

With regard to railroad engineers and conductors, many describe exposure to diesel fumes as occurring in locomotive engines, even though this is a place that should not have diesel fumes. Properly functioning railroad locomotive engines should deposit all diesel exhaust fumes outside an engine cab, but over many years it has been shown that the engine exhaust stack location has not prevented the fumes from entering a large number of engine cabs--based on methods of locomotive use and based on exhaust stack height or location. For example, air conditioning was not available and is still not available in many types of railroad engines. Many locomotive engines were normally operated with windows opened, because of the extreme heat inside and also to afford an engineer or conductor a better view of ground operations by looking out the side window of the cab. Many types of older yard and switching engines actually were run in the long hood forward orientation. In many yard and switching engines, this meant that the diesel exhaust stack was in a position forward of the engineer cab. As the engine moved forward, this would stream the diesel fumes back toward the open windows of the engine cab.

Also, during the 1980's/early 1990's, Norfolk Southern and some other railroads used various diesel engines in the long hood forward position for decades, until union members and workers repeatedly complained about the diesel exhaust fumes and the health effects of repeatedly breathing the fumes. The problem for Norfolk Southern was that the engineer console was set up to run long hood forward, therefore Norfolk Southern was going to be required to modify its engines and/or to modify the locomotive exhaust stacks to prevent the streaming of the diesel fumes into the cab, and this would cost money. Eventually, NS made the modifications and the long hood forward cab engine issue partially was resolved involving one class of engine.

Workers with virtually every major railroad involved in rail yard switching or industry switching have worked with older engines affectionately called "butthead" engines, many manufactured in the 1950's by EMD (General Electric and EMD are presently two of the major diesel locomotive manufacturers in the U.S.. These yard switcher butthead engines were manufactured by EMD and many of these engines were called "smokers." Many variations situated the engineer on the right side of the engine cab, with the long hood forward, and this placed the diesel exhaust stack or pipe right in front of the cab, at a height fairly near the top of the cab-the engineer would face this stack in normal forward operations. This meant in long hood forward moves, that the exhaust trailed right back toward the cab and most times the windows were opened due to lack of closed ventilation or air conditioning. How long were these butthead switchers used? For decades. Some of the 1950's EMD engines are still in operation.

Car repair/carmen, with many railroad such as CSX, Norfolk Southern (NS/N & W) and Amtrak, worked inside of shops or tunnels, where ventilation was less than ideal to say the least. Even for workers not situated inside the engine cab, constant and repeated work in a poorly ventilated area around idling locomotive engines exposed these workers to significant diesel exhaust fumes over many years. This type work exposure can always be aggravated by significant work spent inside tunnels or mostly in closed areas such as shops.

What should railroads do to protect railroad workers?

According to industrial hygiene and industrial safety specialists, there are at least four different methods to control exposure to diesel exhaust fumes: 1) engineering controls should be implemented, such as isolation areas, appropriate shelters for employees, or actual engineering changes to equipment that subjects workers to diesel exhaust fumes, and this could include changing diesel exhaust stacks on engines to assure that fumes do not trail into locomotive engine cabs, providing air conditioning and/or pressurizing and sealing engine cabs so that fumes will not enter the cabs through openings, etc.; 2) implementing administrative controls, which means rotating a railroad worker in and out of a particular job that might expose the worker to excessive diesel exhaust ; 3) changing work practice controls, which means choosing the manner of doing a particular job so as to minimize exposure to diesel exhaust hazards; and 4) mandating personal protective equipment such as masks or respirators or other similar protective equipment. All of these principles are typical industrial health and safety controls, not only in the railroad industry, but for general industry.

A related health and safety practice, is to monitor the workplace-meaning to do air samples and air tests. Air testing has been a routine part of industrial health and safety since as early as the 1930s. Some railroads and or some state or federal inspectors have done air testing for various toxic substances earlier than even 1950. This author's research has shown the railroads occasionally did air testing for various toxic substances, but were very mindful that if the test returned a toxic air result above an acceptable limit, this could provide worker evidence to support claims. Accordingly, at least after the 1970s, the nation's major railroads were extremely careful as to who they allowed to do any air testing, anywhere on railroad property, including locomotive engines. Typically, railroads such as CSX and Norfolk Southern carefully selected "friendly" industrial safety experts that they knew they could count on to advocate their side. Railroad lawyers representing workers in the last 15 to 20 years have discovered that several of the industrial health and safety experts retained by railroads have testified literally hundreds of times, always on behalf of railroad defendants in injury lawsuits. Naturally, we do not believe that testing is valid when presented by an expert who has been paid by the railroads to do the testing, and who is again paid handsomely to testify on behalf of railroads in court hundreds of times.

Cancers and Prolonged Diesel Exhaust Fumes Exposure

In September 2002, under the Bush Administration, the EPA added that "long-term exposure to diesel engine exhaust (DE) in the air is linked to lung cancer. The human evidence from occupational studies is considered strongly supportive of a finding that diesel exhaust exposure is causally associated with lung cancer, though the evidence is less than that needed to definitively conclude that diesel exhaust (as a whole) is carcinogenic to humans," the EPA report said. "Overall, the evidence for a potential cancer hazard to humans resulting from chronic inhalation exposure to [diesel emissions] is persuasive," the report said. Earlier reports said that diesel truck drivers, mechanics, and people whose occupations expose them constantly to diesel exhaust have higher lung cancer rates. But the 2002 EPA report focused on those who breathe diesel exhaust in the air around them, whether they work directly with diesel engines or not.

However, the EPA, after 2002, delayed implementing the new regulation due to suits by the distributors of diesel fuel. The air-cleaning regulation was delayed when oil refiners sued the EPA to stop it, but eventually a federal appeals court ruled the EPA could go ahead and the agency said it would do so, according to news reports.

Epidemiology includes the scientific study of statistics and medical causes. According to Frumkin & Thun's 2001 medical journal study/article, prolonged diesel exhaust fume exposure has been linked to increased lung cancer rates, per this excerpt:

The major cancer suspected of being linked to diesel exhaust is lung cancer. Epidemiologic studies of lung cancer risk in diesel-exposed workers are affected by the usual challenges of epidemiologic studies, especially the difficulty of correctly defining and quantifying occupational exposure, and confounding by other exposures such as smoking and concurrent workplace exposures.
Epidemiologic studies of workers exposed to diesel exhaust have shown small but significant elevations in risk of lung cancer. A case-control study found that railroad workers with at least 20 years of service were significantly more likely to die from lung cancer than were members of the general population. A cohort study of over 55,000 railroad workers by the same researchers found that lung cancer risk increased with duration of exposure to diesel exhaust; the relative risk was 1.72 among workers with the longest exposure (as much as 22 years).
Several studies of teamsters also linked diesel exhaust exposure with lung cancer. Still another study analyzed the lung cancer incidence of almost half a million American males in relation to their occupational exposure to diesel exhaust; men with the heaviest and most prolonged exposures, such as railroad workers, heavy equipment operators, miners, and truck drivers, had higher lung cancer mortality than unexposed workers.

Also, the International Agency for Research on Cancer (IARC) studies exposures that may be cancer causing/carcinogenic. This organization classified diesel exhaust as "probably carcinogenic to humans."

The Environmental Protection Agency (EPA) uses a classification system very similar to that of the IARC. EPA considers diesel exhaust "likely to be carcinogenic to humans by inhalation at any exposure condition."

The National Institute for Occupational Safety and Health (NIOSH) recommends that "whole diesel exhaust be regarded as a potential occupational carcinogen as defined in the Cancer Policy of the Occupational Safety and Health Administration (OSHA.)"
How long have railroads known of the dangers?

The nation's railroads, such as Norfolk Southern, CSX and Amtrak, as well as the other major railroads, participate in a national research and trade organization known as the Association of American railroads (AAR). An affiliated organization is called the medical and surgical section of the AAR, allowing the railroad staff medical doctors to exchange information and have seminars-the physicians met annually as early as the 1930's. Likewise, there is yet another affiliated organization of the claims representatives of the nation's railroads, allowing these staff to exchange information and hold educational meetings and seminars. As early as the 1950s, the claim representatives of the railroads were discussing the health effects of diesel exhaust fumes. Historical documents have shown that these doctors and claims representatives discussed railroad worker claims relating to diesel exhaust fumes, and that discussions of the health effects was covered in detail.

In 1955, a railroad industry attorney gave a formal presentation to the major railroad claims representatives. The attorney, Robert Straub, was employed at the time with the Chesapeake and Ohio Railways Company, which was at a later date folded into CSX. The presentation was entitled "potential dangers from exposure to diesel locomotive exhaust." Referring to the gases that made up diesel exhaust, Straub stated "it appears that continuous or prolonged exposure to atmospheres containing any of the above mentioned gasses in excess of the established maximum could initiate harmful results." He noted that availability of "atmospheric testing" could help determine the degree of hazard to which workers were exposed. Straub went on to state that he had completed a survey of the majority of the railroads and as of 1955 had found a total of six cases involving diesel fume exposure, and he categorized the jury verdicts as between 18,000 and $19,000. He categorized the payments as relatively unimportant and stated that "from a claim and law standpoint, this field has been relatively unimportant...."

Several years later, in 1961 the same AAR railroad industry organization, the claim agent's subsection, published an article in its journal mailed nationwide to its members, called The Bulletin (volume 46, number 10), reporting on a notable legal decision involving the Missouri Pacific Railway Co. and a pipefitter's injury claim against Missouri Pacific. The appeal involved a personal injury verdict in favor of Mr. Sims, a Missouri Pacific pipefitter, and the case outlined that the pipefitter contended that because of alleged insufficient ventilation in the shop, he suffered injuries from inhaling the diesel fumes and gases given off by railroad locomotives. He complained about the harmful effects on his body upon being required to work in a place where diesel fumes were concentrated in large quantities.

In 1965, the nation's railroad medical doctors had their annual seminar, and the seminar discussions were transcribed. The annual meeting was moderated by Dr. Kaplan, a Baltimore in Ohio Railway Co. staff physician (this railroad was later folded into CSX). The dangers of diesel fumes and the potential association of diesel fumes with cancer was a topic of discussion at the annual meeting.

By 1971, the Occupational Safety and Health Administration was created in the U.S.. During the 70s and 80s, OSHA enacted a large number of workplace protective regulations pertaining to respiratory protection, workplace protections in general and the communication to workers of hazards relating to toxic substances.

Around the same time, the National Institute for Occupational Safety and Health (NIOSH) issued what it called Intelligence Bulletin 50 setting forth many of the dangers of diesel exhaust fumes, as established by many peer reviewed scientific and medical studies reporting on adverse health effects of prolonged diesel exposures. A study by NIOSH is typically widely distributed to general industry including railroads.

[For a discussion of federal regulations, and legal decisions against railroads for workers alleging lung disorders, see Part 2 of this article series under mass transit.]

Originally posted at InjuryBoard by Rick Shapiro

Infant Car Seats and Product Recalls

Rick Shapiro — Mon, 05 May 2008 08:17:47 GMT

Note: see also Automobile Accident category.

A recall was recently done of the Evenflo Embrace infant car seat/carriers made before April 8, 2006. This involves over 450,000 bad infant car seats with faulty handles. If you or your family has experienced and injury as a result of this defective product in Virginia (VA), North Carolina (NC), or elsewhere we hope you will contact us to serve as your personal injury lawyer to obtain a recovery from the at fault manufacturer.

Evidently 160 infants have been hurt falling from their car seats when these faulty handles release without warning. The Evenflo Company Inc. is responsible for injuries with are caused by this defect. Obviously cases where the child is not only bruised but suffers a skull fracture, concussion, or brain injury are the most significant kinds of injuries that would occur because of this improperly made product. For more information you can check the website for the U.S. Consumer Product Safety Commission which is www.cpsc.gov. There you will see the hotline number to call about this problem. The company which made the bad product is out of Ohio (OH) but made the faulty car seats in the U.S. and in China. Our law firm based out of Virginia Beach, Virginia (VA) handles product liability cases against manufacturers in circumstances just like these. If you have a question about this particular product recall or other similar cases please do not hesitate to contact us.

[See automobile accident category for more.]

Originally posted at InjuryBoard by Rick Shapiro