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Jury Awards $24 Million to Man Paralyzed in Workplace Accident

Fred Schultz — Mon, 15 Dec 2008 16:32:23 GMT

A Lake County, Indiana jury recently found against a contractor in a workplace injury case and awarded a severely injured worker $24 million. The injured worker fell from a ladder that had not been properly maintained by the contractor, and became paralyzed from the waste down.

Anthony Arciniega, 42, was rendered a paraplegic as a result of a Nov. 20, 2004, fall at ISG Burns Harbor steel mill, which is now known as ArcelorMittal.

Arciniega, who still works for the mill, fell from a ladder that was covered with refractory concrete due to the negligence of Minteq International, a contractor at the mill, according to court documents.

Jury verdicts of this size are extremely rare, and reflect the fact that the Plaintiff, or the person who brought the lawsuit, suffered very dramatic injuries. Generally speaking, if the jury finds that the defendant in the lawsuit was responsible for the injuries to the plaintiff, the jury is able to compensate an injured plaintiff for the nature and extent of their injuries, whether the injuries are temporary or permanent, past and future lost wages, past and future medical expenses, and for what is generally called, "pain and suffering."

In a case involving paralysis, it becomes easy to see how the damages awarded by a jury could reach a number in the tens of millions. First of all, the overall lifetime cost of a paralyzed person's medical care can easily run in the range of $10 million. Likewise, a paralyzed person needs special modifications done to their home, such as widening of the doors between rooms and modifications to their bathroom and kitchen They also need specialized transportation, such as a wheelchair accessible van, so they can get around town. I have no doubt but that this kind of evidence was presented for the jury's consideration.

In addition to all that, the jury is allowed to consider the nature and extent of the injury and its impact on the plaintiff's ability to function as a whole person. Obviously, when a person is paralyzed, they lose a great deal of their freedom and ability to function on their own. Under this set of circumstances there is no limit to what a jury can award for being paralyzed due to the fault of another party. Clearly, this jury tried to compensate the plaintiff and hold the wrongdoer accountable for the full extent of the injuries that were suffered.

Originally posted at InjuryBoard by Fred Schultz

Clergy Sexual Abuse Lawsuit Filed in Indiana

Fred Schultz — Fri, 05 Dec 2008 17:13:39 GMT

We've all heard and read about the sexual abuse lawsuits that have been filed against Catholic Church Clergy over the years. A new one was filed this week in Lake County against the Gary Diocese.

The lawsuit filed Wednesday in Lake Superior Court says Richard Emerson, while a priest at St. Thomas More Catholic Church in Munster, repeatedly molested a boy in the parish during 2003 and 2004 and forced him to watch a pornographic video. The suit was filed on behalf of the boy, now 15, referred to in the lawsuit as John Doe of Hobart.

The case against this particular Catholic Diocese unfortunately seems to fit along the lines of some others that have been reported where there was evidence of past abuse by the particular priest in question.

A 2004 letter from Melczek to Cardinal Joseph Ratzinger — now Pope Benedict XVI — said the bishop had warned Emerson about taking boys on vacations and letting them stay in his rectory.

The letter said that “on a number of occasions priests and laypeople have expressed their concern to me about Father Emerson.”

I have handled a number of sexual abuse cases over the years, and they are nothing short of excruciatingly painful. Dealing with the emotions that naturally go along with such an abuse of power by those who would prey upon innocent children or the elderly is, honestly, one of the hardest things about any case like this. After all, I'm a parent, too. I can relate to the victim's family, and put myself in their shoes to some degree.

Indiana law allows for victims of sexual abuse in these types of situations to bring a claim against the molester or abuser. Also, depending upon the circumstances, the victim can sometimes bring a claim against the abuser's employer, such as the Catholic Diocese in this case. However, there are certain requirements under Indiana law.

First, in order to hold the employer vicariously (jointly or equally) responsible, the abuse must have happened while the abuser was within the course and scope of his/her employment when the abuse occurred. Second, and equally important, the Indiana Court of Appeals has held that the abuser's job requirements must include physically touching the victim for a legitimate reason.

For example, there are times when clergy touch parishoners for prayer or other legitimate reasons related to their job. Likewise, nurses or home health workers must physically touch their patients. There are two Indiana Court o Appeals case dealing with sexual misconduct that are most often cited. The first involves a nursing home patient being abused by a staff member (Stropes by Taylor v. Heritage House Children's Ctr. of Shelbyville, Inc., 547 N.E.2d 244 (Ind. 1989). The second case involves kids who participated in little league baseball being sexually assaulted by a little league official, (Southport Little League v. Vaughan, 734 N.E.2d 261 (Ind.Ct.App. 2000).

In both of these cases, the Indiana Supreme Court and Appellate Courts held that there was a sufficient requirement of physical contact for the employer to be held responsible for the abuse of their employee. However, a recent Court of Appeals decision held that an employer could not be held responsible for the criminal sexual assault of a member of the community when the person's job requirements did not require physical contact. In that case, a township trustee sexually assaulted a woman who came to his office for help. After the woman sued the county and township, the Court of Appeals held, that the trustee's job did not require physical contact in such a manner that the employer could be held liable or responsible for the criminal acts of their employee.

The distinction seems arbitrary in some ways, but that is where the law seems to be at this point. My guess is that this particular case will be able to make the necessary connection between the priest's job requirements and the assault so as to hold the local diocese vicariously liable. Let's hope that it does, and that the case acts as a deterrent and wake-up call so that this kind of abuse does not happen in the future.

Originally posted at InjuryBoard by Fred Schultz

Report Finds Thousands of Unsafe Trucks on America's Highways

Fred Schultz — Fri, 28 Aug 2009 16:18:43 GMT

The American Association for Justice, or AAJ, recently released a report on trucking safety violations entitled “Warning! Safety Violation Ahead: Motor Carrier Companies Keep Unsafe Trucks on U.S. Roads.” AAJ analyzed a million lines of data on the safety performance of U.S. trucking companies which they obtained from the Federal Motor Carrier Safety Administration. The incredible results of this study found that over 28,000 trucking companies with safety violations, representing over 200,000 trucks, are currently operating in the U.S.

In an original analysis of data not previously available to the public, the American Associationfor Justice found commuters are sharing roads with trucks that have incurred thousands of safety violations, such as defective brakes, bald tires, loads that dangerously exceeded weight limits, and drivers with little or no training or drug and alcohol dependence.

These findings clearly demonstrate a need for more aggressive enforcement of safety regulations that govern the trucking industry. Trucks make up only 4% of the vehicles on the road, but account for 12% of the fatalities. Specifically, nearly 5,000 people die every year and another 80,000 are seriously injured in motor vehicle accidents involving semi tractor-trailers. According to the report, 147 people died in Indiana in 2007 as a result of being involved in a motor vehicle accident with a truck.

The report found certain violations that seemed to be common among the industry. The driving force behind the violations was to take short cuts on regulations designed to promote safety, but which ate into profit margins. Often, drivers would overload their trucks and not do proper routine maintenance in order to make more money and reduce their operating costs.

These violations include such practices as overloading trucks, allowing unqualified or untrained drivers on the road, failing to maintain tires and brakes, and compensations systems that encourage truck drivers to exceed speed limits and maximum driving hours.

The unfortunate result is that all of us are forced to use the same roads as these trucks. Hopefully, this report will spark more enforcement these regulations and punish those companies that refuse to act responsible manner.

Originally posted at InjuryBoard by Fred Schultz

Apartment Pool Drowning a Horrible Tragedy

Fred Schultz — Mon, 17 Aug 2009 11:55:50 GMT

It broke my heart to see that a 4 year old boy drowned in the pool at the Bachelor Heights apartment complex. I have a five year old son and simply cannot imagine, and don't want to even pretend to image, the pain his family is suffering.

Pools are a lot of fun in the summer, but they are also very dangerous. There is a good reason why homeowners insurance premiums can go sky-high when people have pools. As we all know, kids are curious, and the younger they are, the less they are able to appeciate danger.

A 4-year-old boy drowned Sunday in an apartment swimming pool just south of Bloomington.
The drowning happened at the Batchelor Heights pool, on West Gordon Pike, about 4:30 p.m., Monroe County coroner Nicole Meyer said.

Most apartments and hotels that have pools do not provide lifeguards, and often post signs that warn people. Many times the owners of the property think that this warning somehow eleviates them of any liability in the future. This is not the case, especially in a situation like this where you have a child that is incapable of appreciating the danger.

Property owners, whether commercial, apartment owners, or homeowners, who choose to have pools also have a duty under Indiana law to take reasonable steps to secure their property (including the pool) to make the premises safe. What is "reasonable" depends on the circumstances in each case.

Basically, the law recognizes that each situation may be a little different. What is "reasonable" for a homeowner to do may be different than what is "reasonable" for an apartment complex. It's not reasonable for a homeowner to have a lifeguard on duty, but it is reasonable to expect the homeowner to have a fence. Whether its reasonable to expect a commercial property to have a lifeguard or attendant also varies. For example, how often the pool is used, how many people have access to the pool, does the property charge admission to the pool, etc.

Much more needs to be known before anyone can assess blame in this situation, and the article in the paper references that the Sheriff's Department will be reviewing security camera footage. What is clear is that this a terribly sad story.

Originally posted at InjuryBoard by Fred Schultz

Pain Caused by Drunk Driver Never Goes Away

Fred Schultz — Fri, 07 Aug 2009 11:46:28 GMT

I was really moved by an article in today's paper. Larry Haywood is a victim of a drunk driver who killed his daughter and grandson twenty years ago. This week, he was speaking to a group of 250 people who were on probation for drunk driving, and who were required by the Court as part of their probation to attend Mr. Haywood's presentation.

Mr. Haywood told the room of people that on the night of the crash, his daughter and grandson stopped by so that his grandson could show off his new clothes and school supplies that he'd gotten for his first day of kindergarten. Tragically, they were both killed that night on their way home by a drunk driver who crossed the center line.

“He didn’t get to take that box of crayons to school...He didn’t get to ride that school bus...It don’t always happen to someone else,” Haywood told his captive audience, some with tears spilling down their faces. “My daughter only had four miles to go. Yesterday, 20 years ago, Tina and Eddie were killed. Today is the day we were making funeral arrangements.”

Maybe this article hit home with me because my son is starting kindergarten next week. Maybe it hit home because I've unfortunately represented so many clients who have either been seriously injured or lost a loved one because of a drunk driver. My guess is that it's probably a combination of both.

I applaud Mr. Haywood's courage. It takes a lot to be willing to stand up in front of other people and share such a painful part of his life. After all, every time he tells the story, he relives it. The wound is made fresh all over again.

However, I have no doubt that over the years he has helped many people make better choices with their lives. We can't know how many people he has saved from a similar fate, from suffering such a horrible and unnecessary loss. I'm sure, though, that there are people who leave his presentation and commit themselves to never drinking and driving again. As a result, our community is a little bit safer each time he courageously steps onto that stage and shares how his life was forever changed.

Thank you, Larry Haywood. Thank you.

Originally posted at InjuryBoard by Fred Schultz

Medical Malpractice Verdict a Lesson in Real Aspects of "Tort Reform"

Fred Schultz — Thu, 18 Jun 2009 17:12:13 GMT

An Indianapolis jury recently awarded $5 million to a woman who was misdiagnosed in the emergency room. This case is illustrative of several things. First, any verdict over $1 million is very rare, which is why it makes the news in the first place. Believe it or not, juries do not just hand money out like that.

Second, Indiana's Medical Malpractice Act limits the amount of money an injured person can receive in a malpractice case to $1.25 million per act of malpractice. Therefore, even though this jury believed that the harm suffered by the injured person was worth $5 million, the award is automatically reduced by the judge after the fact. It's really unfortunate. Our system of justice allows juries to decide whether a criminal charged with murder should receive the death penalty, but we don't trust juries to award the appropriate amount of money in a civil case.

The third reason this case caught my attention is because the act of malpractice occurred in 2000, nearly nine years ago.

Roxxanna Smith, then 18, arrived at the emergency room in July 2000 with a ruptured diaphragm after playing softball. But through a series of miscommunications about what was shown by X-rays, her lawyers said, doctors instead diagnosed a urinary tract infection and muscle strain -- and sent Smith home.

Her condition deteriorating, she saw doctors several times over more than two weeks. Emergency surgery confirmed the correct diagnosis, court documents say, and resulted in the removal of a third of her stomach.

The reason malpractice cases like this can take so long is because Indiana's Medical Malpractice Act forces cases to undergo an enormously time consuming Medical Review Panel process. My experience has been that the panel review process adds at least two or three years to the normal lenghth of time it takes to resolve cases. Often times, it takes even longer than that to get a case through the panel process.

Essentially, what happens is that the lawyers in the case must submit medical records and depositions to a panel of three doctors with the same or similar specialties to those who are being sued for malpractice before ever formally sueing the defendant medical provider in court. As easy and reasonable as that might sound, it takes a very long time, and is extremely biased in favor of the defendant health care provider.

The panel process is biased for a very simple reason. We are all human, and we all have biases and opinions. We all have a tendency to want to help a friend or colleague. Health care professionals are no different. My experience has been that if a panel can find even a lame excuse to find in favor of the medical professional, they will. Don't get me wrong. I have good friends and family members who are physicians. I'm just saying that there is a basic human tendency to look the other way when being asked to judge a colleague's conduct.

Essentially, the real winners in the way the current system is set up are the insurance companies who write medical malpractice policies in Indiana. They are limited in the amount of coverage they have to provide, they can virtually ignore people who have been horribly injured or suffered the loss of a loved one because of malpractice, and the medical providers they insure face a medical review panel of their peers who often find ways to look the other way.

The real losers are not only plaintiffs in malpractice suits, but patients as well. Over 90,000 people every year die from preventable acts of malpractice. Instead of capping damages and making litigation egregiously difficult for those who are wrongly injured, we should focus efforts on reducing the number of acts of malpractice in America.

I would love to see changes made to indiana's Medical Malpractice Act. However, the only people who can make changes are the Indiana General Assembly. To learn more about Indiana's Medical Malpractice Act, and to contact your State Representative, go to www.in.gov.

Originally posted at InjuryBoard by Fred Schultz

Man Dies in Workplace Crane Accident

Fred Schultz — Fri, 12 Jun 2009 12:22:56 GMT

I was sorry to read about another workplace death involving a crane accident last week. According to the report, a worker fell over ninety feet to his death from a crane up in Gary.

A coroner says a Valparaiso man fell 90 feet from an overhead crane and died at U.S. Steel’s Gary Works.

The Lake County coroner’s office says 54-year-old Alexander Santoyo was pronounced dead of massive blunt force trauma about 4:30 p.m. Saturday.

Tragically, serious workplace injuries and deaths frequently occur, especially in factories or on construction sites. There are many rules and regulations that are supposed to be followed to help keep workplaces safe. These rules are put in place to try and protect people. Often, though, they go unheeded. The (Indiana Occupational, Safety & Health Administration) IOSHA is looking into this particular tragedy and will issue a report of their findings in the near future.

Workplace injuries are obviously very, very difficult not only for the injured worker, but their families as well. In addition to medical expenses and lost wages, there are also often serious readjustments that have to be made in life due to either the tragic loss of a spouse or parent, or learning how to deal with a severe injury. For example, when a father suffers a permanent back injury at his construction job, he has to learn a new skill or trade that does not require such demanding physical activity. This means that the family has to find a way to cope with lost income until the dad is able to either finds a new job or obtain disability benefits, while the dad also copes with dealing with the debilitating injury.

Worker's compensation benefits are often available to help ease the transition, but they usually don't cover the injured worker's full loss. However, depending on how the injury occurred, the person or their family can sometimes make what is called a third-party liability claim. For example, if a worker is injured on the job because an employee of a different company did something wrong, then the injured person can bring a claim against the other company's insurance, in addition to his own employer's worker's compensation benefits. Another example would be if a driver for a delivery company was in an auto accident while on the job, the delivery driver could receive worker's compensation benefits, but also bring a claim against the negligent driver's insurance.

Originally posted at InjuryBoard by Fred Schultz

One Year Anniversary of Minneapolis Bridge Collapse

Fred Schultz — Fri, 01 Aug 2008 17:11:05 GMT

It's hard to believe, but it has been one year since the I-35 bridge across the Mississippi River in Minneapolis, Minnesota collapsed. I remember getting home from work and turning on the TV, and seeing the horrific sight of the broken concrete, pieces of steel, smoke and cars involved in the wreckage. We all take for granted that the roads, highways and bridges that we travel with our families every day are safe. Unfortunately, that is not always the case.

Across the United States, there are about 600,000 bridges. The Federal Highway Administration reported in 2006 that one quarter of the nation's bridges were at risk. The American Society for Civil Engineers said in 2006 that it would cost nearly $10 billion every year for the next two decades to fix them.

Here in Indiana, there are thousands of bridges that are not currently meeting federal safety standards. According to an online CNN article, of the 18,408 bridges in the State of Indiana, 4,019 have been found to be deficient in some fashion. That is 22% of all of our state's bridges. Unbelievably, one in every five bridges that we all travel across in Indiana do not meet current safety standards! This is an unfortunate by-product of misplaced priorities at the federal, state, and local level. Our elected officials are either spending our tax dollars on things less important, are too timid in collecting necessary taxes, or both. Literally, we build stadiums while our bridges crumble.

In the case of the Minnesota bridge collapse, the I-35 bridge had apparently been inspected and found to be deficient for years.

CNN has learned that bridge was rated "structurally deficient" 23 years ago, in 1985, and the Minnesota Department of Transportation confirmed it was rated "structurally deficient" again in 2007, just days after the Minneapolis bridge collapsed.

There are remedies under Indiana law for a person who is severely injured due to the negligent design or maintenance of roads or bridges. A person can be bring a claim against the governmental entity (state, city or county government) who was responsible for the proper design or upkeep of a road or bridge. However, strict "tort claim notice" requirements are involved, meaning that the applicable state or local governmental entity is entitled to receive a special notice of the claim well in advance of the normal Statute of Limitations. Also, these claims are very technical in nature and require expert engineering testimony to support exactly what the defective condition was and how it contributed to the accident. There are also statutory-imposed caps, or limits, on the amount an injured person can receive in Indiana against a state or local governmental entity.

Let's all hope that this terrible tragedy serves as a wake-up call and that our government officials begin to put the safety of the public as the first priority.

Originally posted at InjuryBoard by Fred Schultz

Be Aware of the Ten Worst Insurance Companies

Fred Schultz — Wed, 23 Jul 2008 12:14:02 GMT

A recent study released by the American Association for Justice (AAJ) ranked the ten worst insurance companies in America. According to this study, Allstate Insurance ranked as the worst insurance company in America for consumers. The purpose of the study was to inform consumers of the worst insurance companies with regard to claims-handling practices, and to draw attention to the exorbitant profits the insurance industry has been raking in even while they raise premiums and lobby Congress for more protection and handouts.

"The rankings show a distinct pattern of insurance industry greed amongst 10 companies that refuse to pay just claims, employ hardball tactics against policyholders, reward executives with extravagant salaries, and raise premiums while hoarding excessive profits."

The information from the study was gathered from numerous sources, including SEC and FBI files, thousands of court documents and materials gathered through litigation, state insurance department filings, witness testimony, and various news accounts covered by journalists.

This is important information because all of us see the mountain of marketing material put out by the insurance industry in an effort to convince us that "We're in Good Hands," or that the insurance company is, "Like a Good Neighbor." Truth is, good neighbors don't deny good claims, and "Good Hands" don't force people to go to trial in order to get a fair outcome on a legitimate claim.

Consumers need to know the truth about their insurance company so that they can make an informed decision when buying insurance. All of us assume that, should we suffer some sort of loss for which there is insurance, we will be covered for the loss and treated in a fair manner. Unfortunately, that is too often not the case. Instead, the insurance company frequently puts up unnecessary roadblocks and uses the legal system as a weapon to deny or delay claims.

Many times, I have met with new clients who tried to resolve an automobile accident case on their own with the other person's insurance, and who initially had no intention of hiring an attorney because they didn't think they would need one. Often, the insurance company has strung the person on for so long that they find themselves a week or so away from the statute of limitation on their personal injury/automobile accident claim with no resolution in sight. The prospective client is often somewhat amazed that they are having to speak with an attorney, at which point I say, "If insurance companies treated people fairly, I wouldn't have a job."

Bottom line, take a look at the list of "Ten Worst Insurance Companies" compiled by the American Association for Justice. If your insurance company is on that list, my advise is to find another one.

Originally posted at InjuryBoard by Fred Schultz

Home Safety Very Important

Fred Schultz — Sun, 20 Jul 2008 17:32:54 GMT

I recently read in the paper a tragic story about a boy who died when a garage door that was propped up by a board fell and pinned the boy underneath. Apparently, when the board gave way the garage door fell onto his neck. He suffocated before he could be found by other family members and rescued.

"A police spokesman said Terry Lee Barnett was tinkering with an electric car when the two-by-four dislodged about 11 a.m. Thursday and he became pinned under the door."

The report by the police states that the owners of the house knew that the garage door's spring mechanism wasn't working, and that the door was prone to falling. The boy was rushed to Riley Hospital, but it was too late.

Indiana law regarding premises liability holds that owners of property who know, or by exercise of reasonable care would find out about dangerous conditions on the property, can be held responsible for harm caused to another person by the dangerous condition. Dangerous conditions on property can take many shapes. For example, people can slip on ice in the winter, fall into holes covered up by flooring or carpeting, or be electrocuted by faulty wiring. The bottom line is that if a person is invited onto another person's property and is injured by a condition on the property that the owner knew or should have known to be dangerous, then the injured person is allowed to seek compensation for their injuries from the owner of the property.

Clearly, in this tragic case, it would have been far better to fix the garage door than to leave it unrepaired. The death of a young child is always tragic. The death of a young child that could have been easily avoided by simply fixing a garage door is unimaginable.

Remember, it is always better to take reasonable precautions and fix a dangerous condition than to leave it to chance. The bottom line is that none of us should take short cuts when it comes to safety.

Originally posted at InjuryBoard by Fred Schultz