Virginia Beach Personal Injury Lawyer - Rants and Raves

Big Verdict Against Fringe Baptist Church Members Who Protest At Military Funeral--Family Outraged and Apparently Maryland Jury Was Too!

Randy Appleton — Tue, 06 Nov 2007 16:18:57 GMT

By Randy Appleton, HSCLA Attorney

Imagine that you are the parent of a young patriotic man who desires to serve in the United States
Military and who ends up traveling to Iraq. Months later your son is killed in Iraq and you have
the unthinkable task of attending the funeral of your own child. Last, add to the unthinkable funeral that dozens of protesters suddenly show up at the cemetery carrying signs such as "God hates you!" and "God is your enemy!" and other signs which suggest that war in Iraq is punishment on the United States for tolerating homosexuality. A sci-fi movie? No.

In fact, this is exactly what happened at a funeral of Marine Lance Corporal Matthew Snider, who was killed in Iraq, buried in York, Pennsylvania, and picketed by devout members of the Westboro Baptist Church, a fundamentalist Kansas church that has picketed military funerals out of a belief that society is being punished with the war in Iraq because of tolerance of homosexuality.
The family, through attorney Craig Trebilcock, convinced a Maryland jury to award a total of $11 million in damages in favor of the family. The award broke down as $2.9 million in compensatory damages, and then in a second verdict considering punitive damages, the jury awarded $6 million more for invasion of privacy and $2 million for emotional distress. The Snider's attorney was quoted as saying "that says don't do this in Maryland again. Do not bring your circus of hate to Maryland again." The church members routinely picket military personnel killed in Iraq and Afghanistan, and they carry signs as above mentioned and others that say "Thank God for dead soldiers."
While one might believe that everyone has a first amendment right to protest, the U.S. Supreme Court has long held that restrictions on free speech that are reasonably tailored, are constitutional. For example, protesters that want to protest outside of the White House must obtain permits and meet other requirements and similar restrictions are placed on protests around funeral sites, in various states. Actually, Congress has also passed a law prohibiting such protests at federal cemeteries. The main theory of the lawsuit was invasion of privacy and intent to inflict emotional distress, and the verdict was rendered by a federal jury. According to published reports this was the first such lawsuit around the country brought on behalf of a military family relating to such protest.

Originally posted at InjuryBoard by Randy Appleton

Federal Regulatory Agencies-Are They Too Cozy with Big Business? CPSC Chairs Accepted Travel Monies From Manufacturers

Rick Shapiro — Sun, 04 Nov 2007 21:48:03 GMT

According to published reports of the Washington Post, the chief of the Consumer Product Safety Commission has been flying around the country to various events, all paid for by toy, appliance and children's furniture industries that they are supposed to be regulating! Many trips were covered by lobbying groups and lawyers representing these manufacturers.

The trips were taken by Nancy Nord or Hal Stratton, chairpersons, and involved at least a combined 30 trips since 2002, according to the Washington Post. The value of the trips, hotels and meals also combined to total nearly $60,000. For the last several years, critics of the agency have argued that the agency has become too close to the regulated industries it is supposed to regulate.
We all think of the Consumer Product Safety Commission is one of the ultimate watchdog organizations of our government-and it used to be-but not anymore.

Actually, CPSC officials have tried to defend the industry "bought and paid for" trips as a way for the agency to be in contact with manufacturing officials and to learn their concerns. One official with a consumer nonprofit advocacy group, Public Citizen, stated: "This is a blatant violation of the ethics code," adding that nonfederal sources can pay for trips "but not if you're a private party with business pending before the agency." And yes, several examples exist of upcoming issues that concerned some of the manufacturers involved.

The commission has also been under fire due to the recall of large number of Chinese toy products during 2007 and an overall lax attitude toward product safety.

The trips covered or partly paid for by lawyers and trade groups for industries included San Francisco, travel to China, New Orleans, New York, Fort Lauderdale, Florida and Orlando, Florida trips.

Another amazing example of the cozy relationship with the regulated industries, is that Nancy Nord, the agency's acting chair person, accepted more than $2000 in travel and accommodation monies from the Defense Research Institute to attend one of its product litigation trends seminars. The Defense Research Institute has 3000 members which are mostly lawyers representing companies involved in product liability or manufacturing issues. According to the DRI, the seminar was all business, and Nord spoke to the lawyers about the processes and procedures of the CPSC etc. Of course, there is nothing wrong with the commission and chair addressing this group, what is wrong is accepting money to travel to the seminar! It just doesn't smell right.

The Federal Railroad Administration-
Another Major Under-Achieving Federal Agency

On September 12, 2007, David Vladeck, a professor at Georgetown University Law School testified before the U.S Senate Judiciary Committee on current activities of several federal regulatory agencies, and as to the Federal Railroad Administration he offered the following:

The Federal Railroad administration (FRA) has also pushed regulatory preemption. The FRA cites the express preemption of the federal railroad safety act (FRSA) as support for its broad preemption theory. But that statute preempts only a state "law, regulation or order" that covers the "same subject matter" as the federal rule....

The 9/11 Act [enacted in August 2007] makes explicit that actions "under state law seeking damages for personal injury, death, or property damage" are preserved, and are preempted when, but only when, they are "incompatible with" federal mandates. Notwithstanding this clear preservation of state damages law, the FRA now claims, in every rule that it is developing, that the rule, once finalized, will preempt any common law theory of liability. Consider one particularly egregious case of overreaching by the FRA. Only three days after Congress passed the 9/11 Implementation bill, the FRA included significant preemption language in its notice of proposed rulemaking regarding passenger equipment safety standards. In the preamble, the FRA claims that the rule preempts "any state law, regulation, or order it including state common law, concerning the operation of a cab car....or [multiple unit] MU locomotive as the leading unit of a passenger train" ....However, if [any courts defer] to the FRA's preamble claim of broad preemption, California law, and the law of every other state that requires railroads to exercise due care for the safety of passengers, will be swept aside....

I could go on. But as this list makes clear, this administration has seized on regulatory preemption as a way to cut back dramatically on state law remedies for those injured by products and services Americans depend on every day for their health and well -- being-medicines, medical devices, motor vehicles, the matress on which we and our children sleep, and the commuter trains millions of us take to work every day.

Hopefully, the message of Professor Vladeck about the biased roles these regulators are now adopting is getting through to the present Congress.

The Federal Railroad Administration is probably the absolute weakest regulatory agency in the U.S. government. The administrators are lobbied heavily by the industry supposed to be regulated, and there are very few well organized citizen/consumer groups whose message gets through to the agency compared to the railroads themselves. Also, there have been several high level FRA officials that have left the FRA to significant jobs in the railroad industry, ...surprise.

For more information on this subject, please refer to the section on Defective and Dangerous Products.

Originally posted at InjuryBoard by Rick Shapiro

Norfolk Southern Issues "Injured at Work" Brochure Pressing Workers Not To Retain Lawyers

Rick Shapiro — Sun, 28 Oct 2007 08:05:24 GMT

In the recent past, several insurance companies have issued controversial guides about what to do if you are in a car accident--the controversy arises from the not so subtle message NOT to retain an attorney. Actually, several lawsuits forced insurers to change or alter their materials. Now, Norfolk Southern, which is subject to claims falling under the Federal Employers' Liability Act ("FELA") has issued a brochure called "Injured At Work" and is sending it to every employee that reports an injury or on the job disease or disorder. The brochure is so full of deception and inaccuracies that our law firm, which handles railroad injury claims and suits, has issued a point by point "rebuttal" to set the record straight. An excerpt is issued below, and the full rebuttal is available free from our law firm (800-752-0042, Hajek, Shapiro, Cooper, Lewis & Appleton).

Many railroad workers believe that the injury system is workers compensation (workers compensation is a "no fault" system, meaning compensation occurs whether an employer is at fault/negligent or not, but railroad workers hurt on the job fall under a unique federal law system, the FELA, and are only compensated by showing negligence or a statutory/regulatory violation of the railroad or its agents. For a full discussion of the FELA, visit our website at www.HSInjurylaw.com and locate complete articles on this topic.

NS statement:

"[T]he company will make every effort to reach a settlement of the claim that is fair to everyone."

REAL RESPONSE: Well, in fact NS is trying to make a settlement that is fair to NS and really does not have a great deal of regard to whether the settlement is fair to the worker. We have seen many cases in which the total goal of the railroad lawyer is to deny a penny of compensation to a railroad worker and we don't believe a statement that NS is seeking a settlement fair to everyone is accurate.

NS statement:

Q: If it is necessary for me to obtain medical attention, will my supervisor go with me to the hospital or the doctor's office?

A: "Yes. Your supervisor is charged by the company with seeing that you receive proper medical attention promptly.... He or she can also provide the doctor or hospital with information concerning payment of medical bills, the processing of forms and procedures for obtaining prescribed medications."

REAL RESPONSE: We have been involved in many cases where the supervisor intervenes with the railroad worker's doctor, pleading with the doctor not to prescribe prescription medications that would make an injury a "federal reportable" injury. Other examples are well known as well. And by the way, what does your supervisor have to do with your personal medical care? We don't think they have a right to know a thing about your personal medical care except for the fact that NS wants your first medical visit to be to a doctor that it has a prior relationship with (hopefully this doctor will "help" the railroad to avoid an FRA reportable injury, but this will not medically help you the patient!) You as a worker have no duty to let a supervisor know anything about your medical condition and the only duty you have is to have your first medical visit at a place that the company suggests if in fact there is a clinic convenient to where you are located. In an emergency situation the railroad can not demand that you go to some pre-approved railroad company approved doctor-you should get the closest available emergency care of course.

NS Statement:

Q: Since my case could go to court, and I have the right to sue, doesn't it make sense for me to have a lawyer representing me from the beginning?
A: You should hire a lawyer only after careful consideration of whether it is in your best interest to do so....you should remember that you have three years from the time of your injury to start a court action, so there is not need to hire a lawyer immediately. It is a good idea to try to reach a suitable agreement with the claim agent before employing a lawyer.

REAL RESPONSE: Examples are best to explain why this is a deceptive answer by NS-amazingly NS essentially is saying: don't call that lawyer! Wait a year or two!. Remember those commercials where you see a house burn down and the insurance agent is there to give a check to the poor homeowner standing where the home once was? The problem with getting that quick settlement is that the poor homeowner probably has no idea of the value of all the contents of the burned down house and likewise a railroad worker has no idea of the value of their claim right away, without obtaining legal advice from a skilled railroad injury lawyer. NS says here there is no rush to hire a lawyer because you have three years to sue! What about that important issue called "preserving the evidence?" The biggest problem we see with cases where we are retained after a year or two years or more, is that the evidence is gone, the workers who can provide evidence are difficult to locate and there are innumerable changes to the involved equipment or scene of the accident. The precise reason you need to consult with a lawyer is so you can obtain attorney-client privileged advice before you decide to retain us. For example, we might just know whether your circumstances could involve a regulatory violation which would eliminate a need to prove that the railroad even knew about the violation, unlike the legal standards for negligence cases against railroads. The railroad claim agent will never explain this to you. Of course, the railroad claim agent will consult with the railroad's lawyers and the railroad law department on an attorney-client privileged basis and you will never know that. Why shouldn't you consult on attorney on your side if the claim agent is secretly doing so to protect the railroad? You should always seek a free initial consultation with a skilled railroad injury lawyer before deciding on a rapid settlement, under which you may have no idea what the value of your claim is, and you may have failed to appreciate just how extensive your personal injuries are. How can you know if a settlement offer is "good" if you do not understand all that you may be entitled to under the law?

NS Statement:

A: An attorney...will usually require you to sign an agreement covering the fees he will be paid for handling your case....from 25% to 40% of your settlement (or court verdict), plus the expenses of the attorney and others in his office to research, travel, meals, consultant fees, etc. Although an attorney may sue for a large amount, the attorney cannot guarantee the outcome....

REAL RESPONSE: No ethical lawyer will guarantee an outcome-this is true, but the rest of this response omits a lot of important points. First, the railroad is hoping you will not get a privileged, confidential "free consultation" from a lawyer. There is no obligation to sign a contract with our law firm and we will provide that free initial consultation. Why shouldn't you have legal advice if the railroad claim agent and railroad supervisors are getting it on a confidential basis themselves? The nonpartisan General Accounting Office of the U.S. Congress was asked by Congressmen, during the 1990's, to evaluate whether the railroad injury law system was outdated and costly, and should be replaced with some railroad workers compensation system that the railroads have sought since the early 1900's-to replace the existing Federal Employer's Liability Act. The study covered many aspects of this railroad injury law called the FELA, but it statistically found that attorneys recovered far more on average than railroad workers who did not have representation. The railroads know this and they work hard to see that injured workers do not get legal representation because the settlements are statistically bigger and it costs the railroads a lot more when the railroad worker and their skilled lawyer demand compensation that is fair and covers all present and future aspects of the injury claim.

Lets talk about the case expenses that NS claims a lawyer may "spend," as this is a favorite NS scare tactic. Our law firm advances any of these court costs and expenses for you, and ONLY WHEN WINNING YOUR CASE REQUIRES IT. The client repays these necessary expenses only upon the settlement, resolution, or upon a verdict in court. For example, if your surgeon requires an hourly fee to give a deposition about the extent of your injuries, we must pay this on your behalf. Or, if we need to get a medical illustration to show exactly how complicated and problematic your surgery was, we want to have this illustration so a jury will understand how significant your problems will be and what future implications there are. The railroad doesn't want a jury to see those exhibits because they want an early, cheap, settlement where you have no idea what all the implications of your injuries are. It is simple economics and that is why lawyers obtain larger settlements. Also, knowledge is power. One example: lets say you already had surgery and are dealing with a claim agent and do not have a lawyer and are beginning negotiations. Do you really think the NS claim agent will contact your surgeon and ask: "Doctor, how permanent is the affect of this surgery, and what future issues should NS consider before we settle the claim?" You must be kidding! However, this is but one of many, many things your lawyer will always do. Last, our firm, like most, does not charge any attorney fees unless we win a settlement or verdict for you, and the contingent percentage is only by written agreement discussed with you before you retain our firm. We explain all issues with you before you retain us. Yes, our clients retain us because they believe that they will recover fair compensation using our services, and usually this CLEARLY MEANS CLIENTS BELIEVE THEY WILL DO BETTER THAN DEALING WITH THE RAILROAD CLAIM AGENT WITHOUT LEGAL REPRESENTAION.

NS Statement:

Q: What about recommendations from friends or strangers?
A: Some lawyers employ investigators or runners who primary function is to solicit personal injury cases for the lawyer....Often, if they are successful in obtaining a case, the lawyer pays them a lump sum or a percentage of your settlement.

REAL RESPONSE: In Virginia where our law firm is based it is unethical, if not down right illegal to pay an investigator or any other person a fixed sum of money as direct compensation for getting a railroad worker to retain a lawyer. This railroad statement is baseless and deceptive and certainly is not what happens at our law firm, or any firm in compliance with state laws. Obviously, our investigators, particularly the ones who are retired railroad workers, have great background in understanding railroad injuries and accidents, and not only in assisting clients with various questions after a worker retains our law firm, but our investigators help us locate evidence and witnesses, interpret and identify railroad rules and procedures that apply in the case, and in overall strategy for your case. An investigator for out law firm, in many ways is no different than a railroad claim agent who is paid by the railroad. The claim agent is supposed to gather evidence to defend the railroad. Our investigator is employed to help you obtain evidence and information that will help your claim against the railroad. What is the difference? As a matter of fact, the railroad claim agent is probably given bonuses by keeping the amount of your claim to the lowest extent possible. And that is legal! Our law firm, under the law, cannot promise our investigators (or any other person) a sum of money to try to convince a worker to retain our law firm. We rely on the biggest time tested factor: our track record. Study our law firm website: www.HSInjurylaw.com and you will learn why railroad workers and their family members have entrusted our lawyers with their claims and why the railroad invested big money to publish its brochure just to convince you not to obtain a free initial consultation with an experienced railroad injury law firm.

For more information on this subject, please refer to the section on Airline, Cruise, Bus and Other Mass Transit Accidents.

Originally posted at InjuryBoard by Rick Shapiro

New Report Urges Making "Bad Doctor" Information Available to the Public

Rick Shapiro — Wed, 19 Sep 2007 15:15:29 GMT

Authored by: Richard N. Shapiro
A recent report by a Washington D.C. based consumer advocacy group recently concluded that more work needs to be done to make the general public aware of the identity of those doctors who are repeat offenders in the medical malpractice arena. In addition to recommending improvements in patient safety and healthcare providers training, the report stressed the importance of disciplining repeat offenders. Only 33% of the medical doctors who made 10 or more malpractice payments were disciplined by their state medical board and some doctors, with up to 31 medical malpractice payments have never been subjected to any disciplinary action.

Currently, attorneys and patients have no way of knowing who these "Bad Doctors" are. This is because the National Practitioner Data Base public use file conceals practitioners personal information. The consumer advocacy group urged Congress to lift the veil of secrecy which is used to hide doctors who are frequently accused of medical malpractice, especially considering the small percentage of doctors responsible for the majority of the malpractice committed in the United States.

While 82% of doctors had not made a medical malpractice payment since 1990, 5.9% of the others accounted for 57.8% of all medical malpractice payments since 1991.

The report pokes a hole in the myth that it is lawsuits that is driving malpractice insurance premiums through the roof. It validates a lot of what consumer advocates and plaintiff attorneys have been saying for a number of years - that there is a great medical malpractice hoax being promoted by the medical community and insurance industry in this state.

For more information on this subject matter, please review our section on Medical Malpractice and Negligent Care.

Originally posted at InjuryBoard by Rick Shapiro

"Funny" insurance ads are offensive to this injury lawyer

Jim Lewis — Mon, 11 Jun 2007 16:48:07 GMT

Insurance company advertising seems to involve lots of jokes these days. Obviously, some advertising executive has convinced the insurance companies that they can increase their profits [44 billion in 2006] and market share by having comic ads about insurance.

If you watch TV you've seen these insurance company ads, like the one for Zurich Insurance Company who shows gags about people yelling "four" before injuries, and being hit in the head with objects like fish parts. Liberty Mutual has a similar set of ads where they show a series of unusual near miss accidents. Nationwide Insurance Company's goof on people hurt is "life comes at you fast". Of course we have all seen the Geico Insurance ads with the cute lizard and the cavemen. These ads must help insurance companies to improve brand recognition. Even my nine year old kid can recite parts of the Geico Insurance Company ads. Given the record profits insurers are earning, they must be laughing all the way to the bank.

Having fought against insurance companies for the 28 years of my professional life as an attorney, I find very little to laugh about. When you or someone you love has been seriously injured in a car accident the results medically, emotionally, and financially are often severe further, wrongful death often results from careless driving on the highway. Knowing this, I resent it when insurers make light of injuries and accidents in these commercials. Really it is partially just propaganda to make the public who may serve on juries think that accidents are funny as if it were a Three Stooge's routine. Insurance companies try hard to poison the atmosphere against people who have hurt in automobile accidents by making it seem like "fender benders" are a joke and like in the cartoons nobody really gets hurt. The fact is that people can be hurt even where there is not major smashed up damage to the vehicles. Any doctor who is intellectually honest and who treats people for spine injury or brain injury can tell you that the force of throwing you about in a whiplash situation does sometimes lead to permanent injury. The human body is much more fragile than the hard plastic and steel that cars are made out of. Again, doctors who are being forth right will confirm that the amount of property of damage in a car crash does not bear a direct relation to the amount of injury to the occupants of the vehicle. Sometimes people are seriously hurt and the cars don't look that bad. Other times the cars can be mangled and the people walk away unhurt.

Because I deal with insurance claims representatives all day, I know the games that they play to try to get out of paying fair compensation to people who are injured in motor vehicle accidents. The insurance claims agents are trained to say "we are not going to pay you much" because the car didn't look that bad. They are trained to say that "we don't want to pay too much money" because your client is exaggerating their symptoms and injury. I know when I am dealing with these insurance professionals that part of the company and industry policy is to persuade the public that accidents are something to be made light of and just aren't that serious. It's essentially the "stuff happens" defense. Insurance companies forget that we're talking about real people, with real injuries caused by the fault of someone else not using ordinary care behind the wheel of a vehicle. Maybe I am just sensitive to the issue, but the jock ads make me mad.

Originally posted at InjuryBoard by Jim Lewis

Virginia Tech tragedy raises security issues

Rick Shapiro — Tue, 17 Apr 2007 20:03:18 GMT

By Editors Rick Shapiro & John Cooper

With over 30 dead Virginia Tech students, the entire nation including Virginia residents mourn the loss of innocent lives. As of the day after the massacre in Blacksburg Virginia, it appears that the gunman was himself a Virginia Tech student with serious psychiatric issues. However, what is emerging is a clear consensus among police and security officials that Virginia Tech failed to take prompt action after knowing that two people were dead and the gunman was on the loose. Is this a tragic case of inadequate security measures?

One former New York City police official found fault with Virginia Tech's response to the first two killings, especially since the gunman was not located and was on the loose. Would 33 people still be alive if Virginia Tech had immediately gone into a lock down, cancelled classes, and told students to not report for classes?. Would a large commercial establishment or large office complex have reacted within the first five or 10 minutes instead of waiting two hours to even issue in e-mail? These are the questions that surviving students at Virginia Tech were posting on the internet and asking reporters.

Two people were killed in the first shootings at a dormitory about 7:15 a.m. on the campus about two hours before the Norris Hall massacre began. The dormitory, West Ambler Johnston Hall, houses 895 students and is located near the drill field and stadium on the Virginia Tech campus in Blacksburg, Virginia. Virginia Tech is a state operated university in Virginia.

Victims of the shootings were taken to Montgomery Regional Hospital and Lewis-Gale Medical Center, among other locations.

Police associated with Virginia Tech claim that they thought that gunman had fled the area but this seems to be a rather poor excuse for the failure to implement any type of security lockdown or to have canceled classes.

The lone shooter, Cho Seung-Hui,was a 23-year-old senior majoring in English at Virginia Tech. He was a loner, and we're having difficulty finding information about him," school spokesman Larry Hincker said. However, other news reports painted a picture of a person obsessed with violence, at least based on his English papers that former acquaintances described.

In lawsuits alleging injuries or death, the general rule is that when a criminal act intervenes to cause the victim's injury this is not something attributable to a third party-with some big exceptions. For example, if a business has long-standing awareness that the criminal element is loitering or hanging around its premises, and fails to provide security, this can be a basis of liability for a resulting civil injury or death lawsuit, based on the knowledge of the business and a failure to correct a problem or provide security against criminals frequenting the premises.

Inadequate security litigation is not a new legal issue, but generally there must be a negligent or careless failure to act on behalf of the person or party against whom liability for inadequate security is alleged.

Indeed, on this Injuryboard blog, we posted an article about a Virginia Supreme Court decision in 2006, holding a hotel liable for a criminal assault in the hotel parking lot. The Virginia Supreme Court stated:

"It is reasonable for the law to impose upon the innkeeper, and on the common carrier, a duty to take reasonable precautions to protect his guests against injury caused by the criminal conduct on the part of other guests or strangers, if the danger of injury by such conduct is known to the innkeeper or reasonably foreseeable...."

The law applying to a university would seem to be somewhat similar, although public institutions also enjoy some Virginia legal protections not available to private parties.

Our law firm is carefully studying the legal issues surrounding the "inadequate security" allegations of the Virginia Tech tragedy but at this time our hearts go out to the families who lost a son or daughter to such a seemingly senseless tragedy.

Originally posted at InjuryBoard by Rick Shapiro

When Railroads Take Police & Legislators on Train Ride, Is It Really About Safety, Or About Their Liability?

Rick Shapiro — Fri, 08 Sep 2006 08:22:29 GMT

There was a recent article in the local newspaper concerning Norfolk Southern Railway Company conducting a special train ride carrying one hundred people in two passenger cars behind a locomotive, to help these people understand rail safety and the dangers of railroad crossings. However, Norfolk Southern Railway Company and "Operation Lifesaver", a non-profit group, have been accused of trying to influence the same police and legislative representatives that all railroad crossing accidents must be caused by motorists and not railroads. Is it about safety, influence, or a little bit of both?

This reminds me of the recent news stories about the pharmaceutical rep's buying lunch for a doctor's practice once a week and providing some literature about their medication. Makes you wonder...

One of the mantras of Operation Lifesaver and the railroad company is that the motorist is virtually always at fault at a crossing accident. What the newspaper article did not talk about when it warned about crazy motorist going around warning gates, is that many of the railroad crossing collisions are not caused by a crazy motorist going around a railroad crossing gate or failing to watch out for a train. Many railroad crossing accidents happen when the railroads have failed to properly evaluate a railroad crossing and failed to post any lights or gates at the crossing with known prior accident histories.

Most consumers have no idea that the railroad rarely pays for the lights or gates that are at a typical public railroad/highway grade crossing. Believe it or not, your friendly federal and state governments usually pay for nearly all of the costs for crossing lights or gates. Usually, the railroads merely have to agree to have their existing railroad employees maintain and keep up the expensive equipment once it is installed with taxpayer dollars.

What about crossings that have had several accidents and that the railroad still refuses to do anything about? If a motorist gets killed in a fiery crash with a train with no opportunity to stop as the train approaches, is it always the motorist's fault as Operation Lifesaver tends to tell these police and legislators?

Our firm has practiced railroad injury law for many years and we can tell you conclusively that drivers that get killed at private and public railroad crossings do not intend to die. They are not trying to commit suicide. Many of them, based on witness testimony, have no idea the train is coming until it is too late and the accident is inevitable. These people did not go around the gates or ignore the lights! These people approached a railroad crossing and had no idea a train was coming because there were no advance warning signs or flashing lights or gates.

As a matter of fact, I have written several blog articles about the fact that the railroads were urging states to post stop signs at many private crossings (private crossings are simply crossings where the road is not yet dedicated or owned by the city or county). A major study found that the addition of stop signs at crossings was actually making them more dangerous and causing more accidents! The railroads nationwide are still generally promoting stop signs at crossings even though no statistics show they improve safety. But they sure are cheap, and then the railroad can find "cover" and blame the motorist every time. Please see other articles on this blog that discuss stop signs at crossings. I even wrote to the reporter, who wrote the story covering this recent Norfolk Southern "safety train ride", to make him aware about the dangers of stop signs and how we need to focus more on getting appropriate warnings at crossings, not just on blaming the motorists.

Originally posted at InjuryBoard by Rick Shapiro

Virginia's Unfair Punitive Damages Cap Penalizes Families

John Cooper — Thu, 03 Aug 2006 12:02:54 GMT

BY JOHN M. COOPER, HSCLA ATTORNEY

Last December a teenager from Chesapeake, VA was killed in a hit and run wreck. The young man was a senior in high school riding his bike. The driver, who was in his 60s, hit the young man and sped away.

Now a lawsuit has been filed to try to get compensatory damages for the family for the loss of this young man. The at-fault driver was taking a medication that impaired his ability to drive at night. This certainly sounds like aggravated liability.

However, in Virginia, punitive (punishment) damages are rarely given. The fact that the old man may have been reckless in driving while on this drug is probably not enough to allow a judge to permit a jury to award punitive damages. Many people don't realize that punitive damages are rarely given. General (compensatory) damages are the amount to pay the family back for the medical and funeral expenses, loss of their loved one and his companionship and that of comfort to the family. Punitive damages are an amount intended to punish the defendant. Under Virginia law and many other states, you have to prove not just gross neglect, but a nearly intentional or purposeful set of actions which is usually not present. Even evidence that the driver was drunk, is not automatically enough in Virginia to get punitive damages, unless the alcohol level is over a certain level.

The insurance companies have been successful at getting the legislature in Virginia to limit the awards that juries can grant for punitive damages. Even in a clear cut case of punitive damages, the most that can ever be awarded is $350,000.00. Although that may sound like a lot, it is nothing to many big corporations, like General Motors. $350,000.00 not only will not punish a multi-national company, the company will hardly even notice it. The insurance companies have so limited the ability to get punitive damages in Virginia, so even when the facts will permit them, there is very little deterrent to reckless drivers and companies when they harm, or even kill, people. This is the perfect example of how insurance companies have altered the civil justice system to insulate the insurer's, but this penalizes families that suffer incredible losses.

Originally posted at InjuryBoard by John Cooper

Who Really Has the Money? (Think Runaway CEO Salaries, Not Runaway Juries)

Rick Shapiro — Sat, 22 Jul 2006 16:39:20 GMT

By James C. Lewis, HSCLA Attorney

It seems that with every passing year, we hear more and more complaints from the big corporations in the United States about the fact that lawyers representing injured victims are costing them huge sums of money by suing them and taking them to court. These corporate spokesmen frequently blame the trial lawyers in this country (who represent injured victims) for the high cost of doing business, but is this really just corporate propaganda? What a great sham: blame the trial lawyers, while the CEO's convince consumers to give them the keys to the local courthouse!

In a recent article which appeared in Trial magazine, a publication of the American Association for Justice, formerly the Association of Trial Lawyers of America, the following corporate incomes were described:
1. In 2005, the typical CEO of a Standard & Poors 500 company took home $11.8 million dollars.
2. Rick Wagoner, the chairman and CEO of General Motors, received compensation totaling more than $9.9 million in 2004, when he was leading what was once the world's most powerful corporate entity in the direction of bankruptcy.
3. Lee Raymond, the head of Exxon, was paid $48.9 million in 2005 while his counterpoint at Occidental Petroleum, Ray Irani, pocked $64.3 million.
Remember that the next time you fill up at the gas pump and wonder why prices are so high.
4. Edwin Crawford, the head of Care Mark Rx, the nation's largest prescription management and pharmaceuticals business, was paid $17.3 million in 2005. Have you ever wondered why your health insurance premiums are so high?
5. William McGuire, CEO of United Health Group, Inc., was paid $37.7 million is 2005. I wonder if he's complaining about the high cost of health care?
As these enormous salaries demonstrate, it is not the trial lawyers who represent innocent victims of corporate carelessness who are raising the cost of doing business in this country. Rather, it certainly seems that a large portion of the cost of doing business finds its way into the pockets of that group of people at the top of corporate ladders, who are not only getting ridiculous tax breaks from the current administration, but are getting every regulatory "break" available--even if it means consumer safety suffers.

Originally posted at InjuryBoard by Rick Shapiro

How the Federal Rail Safety Act is Weakening Railroad Safety Nationwide

Rick Shapiro — Tue, 27 Jun 2006 08:55:54 GMT

The Federal Rail Safety Act (FRSA) was enacted by Congress in the 1970's to improve nationwide railroad safety, and to make sure uniform laws applied to essential railroad safety for trains travelling through multiple states.
The idea was that individual states could not enact a hodge podge of different safety rules on basic transport of freight or as to how the railroad track was to be constructed and maintained.

But...one key point was that the FRSA did not wipe out any state or local law that did not direclty affect interstate railroad track safety or did not affect essentail railroad transport or speed. It also did not wipe out any state law on suing a railroad if it had an unsafe railroad crossing. But, the FRSA has become the railroads' super weapon to actually erode railroad safety.

Over time the railroads have tried to increasingly argue that the very existence of this FRSA wipes out virtually any and all state and local laws, even if the state or local law does not truly affect interstate rail safety and even if FRSA regulations do not really deal with the point of the state or local law in question. The railroads' legal arguments are generally called "implied federal preemption," or basically that federal law trumps any state or local law.

The railroads' blatant twisting of the FRSA has started to go way too far in the last couple years, and I predict that the pendulum is going to swing back and smack the railroads very soon.

This year, a railroad in a North Dakota federal case (Minot, ND train derailment) convinced a federal judge that the mere existence of this FRSA completely wiped out any victim's right to sue a railroad at all over a toxic derailment spill. Sure, hundreds of victims in the town suffered injuries from toxic fumes. But, this federal judge wistfully wrote that his hands were tied because of the preemption of the FRSA. Sorry folks, no recovery for your injuries!

The railroads now have been expanding their argument in states across the nation where they are sued for crossing wrecks under state laws. The railroads are collectively "removing" such cases to federal courts they deem better for them, on the theory that the FRSA is a federal act, and it trumps state laws entirely. They are trying to get the cases to federal court first, then ask the federal judges to throw the entire cases out next!

Another example: railroads are trying to avoid compliance with state and local highway code requirements, like on overhead bridges. In Covington, Kentucky, CSX railroad believes it is above the law, per the Mayor's opinion. CSX refuses to repair a deteriorating and dangerous railroad bridge. It paid a $5,000.00 fine but plans to appeal the fine and argue that Covington law means nothing to CSX.

"They seem to think they're above (local) law," Covington Mayor Butch Callery said "They're just going to move along until at some point in time there's a really serious accident on the railroad tracks. Then there are going to be all sorts of laws passed on a federal level. We don't want that to happen."

CSX spokesman Gary Sease said that the railroad isn't addressing most of the violations because it considers them aesthetic. He said CSX has paid the $5,000 fine and claims the CSX brudge meets "all company and federal safety standards."

"We do intend to correct some problems with some downspouts on the bridge, but we do not spend our capital dollars on aesthetics," Sease said. "I believe the city is asking us to paint the bridge to make it more attractive. "We will certainly address anything that's a safety problem."

Mayor Callery said he is frustrated that CSX continues to ignore repeated code violations. Lawyers for the railroad have maintained that the Federal Railroad Safety Act pre-empts any local laws.

Rick Ludlum, president of the Austinburg (Kentucky) Neighborhood Association, predicted it will take a class action suit involving cities throughout the U.S. to get the railroad's attention.

"You wouldn't let a house go to pot where the gutters are falling off and the roof's caving in," Callery said. "CSX is no different than any other property owner."

Just another example of the railroads using the FRSA to shirk, not improve, railroad safety.

Given that the Federal Railroad Administration, the rail agency with most enforcement power, is the most weak and feeble federal agency on safety enforcement nationwide, the railroad strategy is obvious. A report of the DOT's inspector General's office recently found that the FRA fined the nation's railroads about $200,000 cumulatively for AN ENTIRE CALENDAR YEAR. Wow! What a tough watchdog agency the FRA is.

Pretty soon, even conservative federal legislators will recognize that the railroad preemption card has eroded, not promoted, railroad safety and the pendulum will swing back.

Originally posted at InjuryBoard by Rick Shapiro