Image by Benimoto via Flickr Hereâ€™s what other personal injury and workerâ€™s compensation bloggers, and more, have been talking about over the past few weeks: Southwest Airlines Feels the Wrath of Twitter (And Kevin Smith) (bNet.com) EEOC Socked with $ 4.5 Million Attorneys Fees Award (Workplace Prof Blog) Some Fosamax Users Have Had Their Femur Fracture Without Any Fall Or Other Trauma (Drug Injury Watch blog) Defense Expert Found Contradictory in Psych Claim (Workers’ Compensation blog) Another New York School Sports Injury Lawsuit Dismissal Upheld on Appeal (New York Injury Cases blog We Will All Benefit from the New Vioxx Settlement (the Pop Tort)
Image via Wikipedia Recalls of tainted food seem to be an ever increasing phenomenon. In January there was a massive recall of ground beef products.Â As reported in USA Today, a California meat-packing company recalled 864,000 pounds of beef due to fears it had been contaminated with E. coli. In another case, as reported by ABC News, there was a nationwide salmonella outbreak that sickenedÂ people across 40 states. The outbreak is believed to be linked to contaminated pepper that coated the salami. In late January, Daniele International, the company that manufactured the salami, recalled over 1.2 million pounds of the product. Also in January, a Minnesota company, Parker’s Inc., recalled “peanut butter, cheese, salsa, and other foods from a long list of major food retailers” due to listeria contamination (via WebMD). Fortunately, more protection for consumers is just around the corner.Â As Walter Olson aptly notes at over at Point of Law, the upcoming year will likely prove to be significant in the area of food liability and regulatory changes. Ken Odza at the Food Liability Blog predicts that Congress will pass a new food safety legislation: Nobody doubts that weâ€™re in the midst of the most significant legislative and regulatory changes in food safety in generations. Most believe that Congress will pass some form of food safety legislation (e.g., S 510 or HR 2749) in the new year. It will likely include the most comprehensive food safety reform in decades. Among other things, this legislation is likely to give FDA mandatory recall power and great authority for risk-based inspections, and require FDA to create a traceability program. The number of recent recalls of tainted food products is evidence that this is an ever-increasing problem.Â Consumers deserve to be protected from tainted food products and stronger governmental oversight of our food supply only makes sense.
Image via Wikipedia In December of 2008, the Chicago City Council approved Mayor Daley‘s plan toÂ lease the City’s parking meter plan to a private company for 75 years.Â This was done in an attempt to increase revenue and pay down the City’s budget deficit. As a result of this plan, some areas of the City saw their parking rates increase exponentially, angering many City residents. In an effort to soothe the frustrations of affected Chicago motorists, Ald. Ginger Rugai recently proposed an ordinance that wouldÂ require that anyone receiving a parking ticket in Chicago receive photographic proof of the parking violation, as explained in a Chicago Sun-Times blog post: (Motorists are) reluctant to challenge their violations before administrative hearing judges because they lack proof that a mistake was made… Rugai’s ordinance would require photographs to be attached to every parking ticket. The lack of a photograph would become one of four reasons for automatic dismissal. As explained in the blog post, the City already owns 140 hand-held devices that take pictures as well as issue tickets. However, the City only uses those devices in limited situations, such as when tickets are issued for parking illegally in a permit parking zone, missing, expired or improperly displayed plates, and invalid or missing city stickers. In all other cases, tickets are issued by simply writing a ticket in a ticket book. The proposed parking ordinance is a good idea in light of the increased costs of parking in downtown Chicago, which are the direct result of the 2008 outsourcing of the City’s parking meter plan. In this day and age, the cost of having to prove a case by taking pictures of the parking violation–especially since the City already owns the devices–is marginal, at best. There is simply no reason that the City should not have to prove their case using photographic evidence, since Chicago motorists risk losing their driving rights if parking tickets are unjustly issued without cause.
Image by Getty Images via Daylife Many plaintiffs lawyers are predicting that the Toyota products liability recalls will result in complex federal lawsuits rivaling the tobacco litigation, as explained in this ABA Journal blog post. In Ohio, a class action against Toyota was recently filed allegingÂ fraud and negligence arising from the recall related to the defective gas pedals.Â As explained in an AP article, the basis of the fraud claim is that Toyota was aware of the defect and knowingly kept this information from the government and the unsuspecting public. The fallout from the Toyota recalls is not limited to products liability however, and is far reaching. For example, the recall may result in the reversal of a conviction of a man who sped through an intersection, killing a family that was crossing the intersection in their vehicle. Kung Fao Lee, who was driving a 1996 Toyota Camry at the time of the accident, was convicted of criminal vehicular manslaughter in Minnesota in 2008 and is currently serving an 8 year prison sentence. As explained in this article, a defective accelerator is now believed to have been the cause of this inexplicable and horrific accident: Toyota Motor Corp. is recalling more than 7 million U.S. vehicles due to sudden-acceleration issues, which have been linked to several hundred crashes and at least 18 fatalities. Lee’s 1996 model was not among the recalled Camrys, which include those manufactured from 2007 to 2010. Nevertheless, Schafer said, the Lee case is worth pursuing. “You can’t just let it go, because we don’t know how wide this recall is going to end up being,” he said. “This may be able to provide a piece of the puzzle to explain what was previously an inexplicable case.” Similarly, our office recently received a phone call from a woman whose sister had been killed in a single car accident. She was driving a Toyota at the time, and there was no explanation for why her car sped off the roadway. Her sister had no mental or physical health issues, the weather conditions were normal, and there was no suspicion of the involvement of alcohol or drugs. Unfortunately, the statute of limitations for this accident had expired when we received this call, the car was no longer available for inspection or testing and the distraught caller had no standing to being a lawsuit on her sister’s behalf. This[READ MORE…]
Image by dandeluca via Flickr On January 22, 2010, the Illinois Supreme Court handed down an important decision in the Workers’ Compensation arena. At issue in Interstate Scaffolding Inc. v. the Illinois Workers’ Compensation Commision, et al was whether the employer must continue to pay Total Temporary Disability (TTD) benefits resulting from a work-related injury, when a worker is terminated, regardless of the reason for the termination. The court held that the employer was indeed required to continue to pay benefits: We hold that an employer’s obligation to pay TTD benefits to an injured employee does not cease because the employee had been discharged — whether or not the discharge was for “cause.” Â When an injured employee has been discharged by his employer, the determinative inquiry for deciding entitlement to TTD benefits remains, as always, whether the claimant’s condition has stabilized. If the injured employee is able to show that he continues to be temporarily totally disabled as a result of his work-related injury, the employee is entitled to TTD benefits. The court further concluded that an employer is required to make payments until the worker either reaches maximum recovery or is otherwise made whole. This is an important ruling for Illinois workers, since it discourages employers from engaging in retaliatory job termination when an injured worker is unable to return to work at full capacity following an on-the-job-injury. In other words, this decison ensures that injured workers will not be fired by an employer in an effort to end the employer’s obligation to pay TTD benefits to the injured worker. Because of this important ruling, workers who are recovering from workplace injuries can rest assured that they will receive the TTD benefits to which they are entitled.
Image via Wikipedia Last Thursday, in LeBron vs. Gottlieb Memorial Hospitalt, Docket No. 105741, the Illinois Supreme Court struck down the state’s medical malpractice law, which imposed caps on damages awarded to victims.Â The now-overturned law, which was enacted in 2005, limited damages in medical malpractice actions to $500,000 for pain and suffering and other non-economic damages ofÂ in cases against doctors and $1 million for claims against hospitals. The Court concluded that the medical malpractice law was unconstitutional since it violated the Separation of Powers clause of the Illinois Constitution: We hold that the limitation on noneconomic damages in medical malpractice actions set forth in section 2-1706.5 of the Code violates the separation of powers clause of the Illinois Constitution (Ill. Const.1970, art. II, Â§1) and is invalid. Because the Act contains an inseverability provision (Pub. Act 94-677, Â§995, eff. August 25, 2005), we hold the Act invalid and void in its entirety. We emphasize, however, that because the other provisions contained in Public Act 94-677 are deemed invalid solely on inseverability grounds, the legislature remains free to reenact any provisions it deems appropriate. Insurers and defense counsel decried the decision, asserting that striking down medical malpractice caps will result in higher insurance premiums and a loss of physicians to states where caps on recovery are still imposed. However, as explained in this Chicago Tribune article, others hailed the decision as a victory for the poorest of medical malpractice plaintiffs, many of whom have difficulty obtaining representation because lawyers are hesitant to take cases due to lower potential recovery: Damage caps hurt the most serious cases of medical negligence, said Tom Baker, a professor at the University of Pennsylvania Law School and author of “The Medical Malpractice Myth.” Personal injury lawyers are less likely to take cases from lower-earning people because the potential recovery is smaller when damages are limited to economic losses. “Caps don’t solve the problems of the medical liability system,” Baker said. “Doctors still have tremendous distrust of the system. And people that are the most deserving don’t get the money.” The debate over the necessity of medical malpractice damage recovery caps will no doubt continue, but for now, at least in Illinois, such caps don’t apply, representing a strong victory for victims of medical malpractice.
Image via Wikipedia Texting while driving is a hot topic these days as the dangers of operating a motor vehicle while distracted become increasingly clear. In fact, the government has established a website, Distraction.gov, that outlines the risks inherent in driving a car while distracted. (Hat tip: Day on Torts). Statistics on the website reveal the extent of the problem presented by distracted drivers: In 2008, there were a total of 34,017 fatal crashes in which 37,261 individuals were killed. In 2008, 5,870 people were killed in crashes involving driver distraction (16% of total fatalities). The proportion of drivers reportedly distracted at the time of the fatal crashes has increased from 8 percent in 2004 to 11 percent in 2008. The under-20 age group had the highest proportion of distracted drivers involved in fatal crashes (16%). The age group with the next greatest proportion of distracted drivers was the 20- to-29-year-old age group (12%). Motorcyclists and drivers of light trucks had the greatest percentage of total drivers reported as distracted at the time of the fatal crashes (12%). An estimated 21 percent of 1,630,000 injury crashes were reported to have involved distracted driving. The website also offers statistics regarding the drastic effect that use of a mobile device can have on a driver’s attention levels: Using a cell phone use while driving, whether itâ€™s hand-held or hands-free, delays a driver’s reactions as much as having a blood alcohol concentration at the legal limit of .08 percent. (Source: University of Utah) Driving while using a cell phone reduces the amount of brain activity associated with driving by 37 percent. (Source: Carnegie Mellon) 80 percent of all crashes and 65 percent of near crashes involve some type of distraction. (Source: Virginia Tech 100-car study for NHTSA) Nearly 6,000 people died in 2008 in crashes involving a distracted or inattentive driver, and more than half a million were injured. (NHTSA) The worst offenders are the youngest and least-experienced drivers: men and women under 20 years of age. (NHTSA) Drivers who use hand-held devices are four times as likely to get into crashes serious enough to injure themselves. (Source: Insurance Institute for Highway Safety) In response to these sobering statistics, more and more jurisdictions are banning the practice because of the rise in automobile accidents caused by this relatively new phenomenon as explained in this recent New York Times article: In all, lawmakers have[READ MORE…]
Image by Benimoto via Flickr Here’s what other personal injury and worker’s compensation bloggers have been talking about over the past few weeks: 9/11 Lawsuits May Shine A Light on What Really Happened That Day (via The Pop Tort) Lead Paint and Constructive Notice to Landlords (via New York Personal Injury Law Blog) Doctors and Hospitals Seek Special Treatment for Emergency Room Malpractice (via Day on Torts) Suit Against Exxon for Alleged Radiation Exposure Underway (via TortsProf Blog) Medical Malpractice Lawsuit Saga in NY: After 13 Years, Doctors Lose Two Trials, Fail to Enforce a Favorable Settlement Agreement and Must Pay $1,405,000 (via New York Injury Cases Blog) Faces of Lawsuit Abuse â€œworst lawsuitâ€ poll (via Overlawyered)
Image via Wikipedia At issue in Reed v. Galaxy Holdings, 394 Ill.App.3d 39, 914 N.E.2d 632 (Ill.App. 1 Dist.,2009), was whether a business had a duty to remove the water that had accumulated on the floor in the entryway of a laundromat, where the puddle of water caused the plaintiff to slip and fall, resulting in serious injuries. On the date that the plaintiff was injured, it was drizzling outside and an employee of the laundromat placed a mat on the floor in the vestibule between the first and second doors and also placed a mat on the floor just outside the second door. As the plaintiff entered into the vestibule area from the outside, she slipped and fell on a puddle of water as she stepped off the first mat and onto the bare vestibule floor. The Court concluded that summary judgment was properly granted in favor of the defendant: In this case, plaintiff failed to offer any evidence allowing a fact-finder to find that the puddle of water was anything other than a natural accumulation or that defendant caused or aggravated the accumulation of water. Plaintiff admits that it was raining on the day of the incident and that the water was tracked in from the outside. Plaintiff also failed to present evidence establishing that her injury resulted from a defect in the design, construction, or maintenance of the tile floor or that the premises were not properly illuminated. Plaintiff did testify that defendant placed two mats at the Laundromat’s entranceway on the day of the incident. Allowing saturated mats to remain in an entranceway does not by itself, however, transform the tracked in water into an unnatural accumulation nor suggest that defendant aggravated the water’s natural accumulation. It is surprising that the Court extended the rule of “natural accumulation” to apply to water that had been tracked by patrons into the premises. That the Court applied this rule to water that had accumulated inside the business is unfortunate since it makes it more difficult for injured customers to recover for their pain and suffering.
Image via Wikipedia Eric Turkewitz at the New York Personal Injury Law Blog recently noted that a New York court wisely banned the use of social security numbers in subpoenas: (Y)esterday, in the New York Law Journal, (no link) comes the story of Supreme Court Justice F. Dana Winslow of Nassau County refusing to sign subpoenas in a medical malpractice case because the social security numbers were on it. In an interview with the NYLJ, the judge said that he gets papers with Social Security numbers on a weekly basis but this was “the first time I had a chance to do anything about it” because ordering the subpoena would have placed it in the public record. Eric Turkewitz has blogged about client privacy and court records in the past and raises a very valid concern in regard to social security numbers. This is an issue that all lawyers should keep in mind when filing papers with the court on behalf of their clients. This also touches on a broader issue: Any information contained in documents filed with the court has the potential to haunt clients down the road. When clients choose to file a lawsuit, they must understand that they are putting themselves out there in the public record. For example, a client who alleged in a Complaint in a personal injury case that he suffered from severe back injuries as a result of a car accident might later find that a future employer learned of his injury after reviewing the court filings. Likewise, in divorce proceedings, court records likely contain all sorts of sensitive, private information and potentially embarrassing information that is readily available to the public, should anyone care to obtain the records. And, in Cook County, Illinois, judges refuse to seal divorce records unless the case involves a minor. In this modern world, where public records can be easily accessed and quickly distributed using the Internet, it is important that both attorneys and their clients keep these risks in mind and be wary of unnecessarily including sensitive and confidential information in documents filed with the court.
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