Alabama Litigation Review

Justice And Arbitration Fairness

Jeff Blackwell — Thu, 16 May 2013 19:52:24 -0600

Arbitration. What role should it play in our justice system? What role does it currently play? These are important questions if you have an interest in seeing that those injured are able to access the courthouse for justice.

As Federal policy, arbitration began as a means for sophisticated businesses to resolve complicated commercial disputes privately. That is the proper role arbitration should still play today. However, it has become something very different.

Forced arbitration. That is what arbitration has become. It is no longer a matter of significant negotiation between companies entering complicated contracts. Forced arbitration has become a means for businesses to deny justice to individuals injured by their misconduct. Forced arbitration has closed the courthouse doors to you and your family.

Buried in the fine print of your basic documents -- related to all kinds of consumer items used daily, such as credit cards, television cable, car purchases, cell phones, retirement accounts -- are forced arbitration clauses that deny you the right to go to court. Do you have an elderly parent or relative in a nursing home? Most likely, there is an arbitration clause in the documents admitting them. That means any injuries due to negligence or abuse will be arbitrated before someone chosen by the nursing home. Does that sound fair?

Forced arbitration is unjust. As Public Citizen so clearly explains:

In arbitration, there is no judge, jury or right to an appeal. The arbitrators do not have to follow the law, and there is no public review of decisions to ensure the arbitrator got it right. Moreover, contracts typically name the arbitration firm that must be used – the one preferred by the company.

People who have been harmed by fraud, predatory lending, discrimination, negligence, defective products or scams should not be forced into arbitration: they should have a choice.

Think some private arbitration group chosen by the company will be fair? Think again. Several years ago, the Attorney General of Minnesota spotlighted one private arbitration group. It turns out the group was the chosen arbitrator in many collection actions. Yet, it was discovered that the arbitration group was largely owned by certain debt collection companies. Does it sound fair that consumers should be forced to submit their disputes to a private arbitrator tied by ownership to the very companies and industries at issue?

It is outrageous that we can be forced to give up our Constitutional right to a jury trial just to hold a job or purchase necessities for life. A few days ago, the Arbitration Fairness Act was introduced into Congress. What does the Arbitration Fairness Act seek to accomplish? Simply, it protects the rights of citizens to justice in our courts. A press release by one of the Congressmen sponsoring the bill, says that its purposes are:

What the Arbitration Fairness Act Does:

- Restores the original intent of the FAA by clarifying the scope of its application.

- Amends the FAA by adding a new chapter invalidating agreements that require the arbitration of employment, consumer, or civil rights disputes made before the dispute arises.

- Restores the rights of workers and consumers to seek justice in our courts.

- Ensures transparency in civil litigation.

- Protects the integrity of the Civil Rights Act, the Equal Pay Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act, among others.

This is an important proposal. The courthouse doors should not be closed to families who have suffered personal injuries or damages because of corporate wrongdoing.

Hospital Bills and Payments: Issues in Personal Injury Cases

Jeff Blackwell — Sat, 11 May 2013 19:12:07 -0600

The U.S. government recently released data detailing and comparing hospital charges. The clear fact revealed by the data -- Charges for specific procedures can vary greatly between hospitals. This comes as no surprise to me. I see hospital bills on a regular basis in my personal injury practice.

When asked about this data on hospital charges, Huntsville Hospital's CEO responded:

I'm not sure it's really relevant to what Huntsville, Crestwood, or UAB hospitals actually get paid.

He's right. The amount billed and the amount actually paid to the hospital can be very different. Blue Cross, Medicare, Medicaid, Tricare, and other plans, all pay differently. How does this issue impact personal injury claims? It creates many issues. Frankly, many lawyers who advertise for personal injury cases really don't take the time to understand these issues. As a result, their clients suffer. Here are a few of these issues:

The Same Injury Can Result In Very Different Medical Damages -- Because of insurance issues, the amount accepted by a hospital for the same procedure to two different accident victims, can be very different. Under current Alabama law, the defendant in a personal injury case can introduce into evidence the lesser amount accepted by the hospital to satisfy a bill. Is this really fair to the injured person who paid huge health insurance premiums for many years?
Some Hospitals Try To Collect Top Dollar From Accident Victims -- If you have health insurance or coverage through a program like Medicare, the hospital should collect payment directly from your health plan. Yet, some hospitals ignore this coverage and file a lien directly against the accident victim for the full amount of the bill. In these cases, it is important that you have legal counsel that understands how to deal with health insurance and hospital liens. The difference to you can be huge.
Different Health Plans/Programs Have Different Subrogation Rights -- When a health program pays your bills and you later recover damages for the personal injury, that plan has certain rights to be paid back. A good understanding of subrogation is essential to helping your client with his personal injury claim. I have written about this topic previously. Too often, lawyers fail their client with these issues. Like the prior issue, the difference to you can be huge.
People Without Insurance Have The Highest Charges -- Because health plans and programs pay a reduced rate, people without health insurance effectively have the highest charges. So, the people who can least afford a big bill get the biggest. This makes it difficult to get the treatment needed for recovery. It also creates a cycle that can impact the injured victim for years. A prior study indicated that a majority of personal bankruptcies had a medical cause.

The recent study on hospital charges is interesting. The payment issues related to hospital charges are very important to my practice as a trial lawyer. This is an area where effective legal counsel can really help a client.

UPDATE -- Takeda Faces First Trial Over Diabetes Drug Actos

Jeff Blackwell — Sat, 27 Apr 2013 14:00:37 -0600

April 27, 2013:

A few days ago, I wrote about the first case to go to trial against Takeda Pharmaceuticals over its diabetes drug Actos. Takeda faces a huge number of cases alleging that its drug Actos is defective.

As I wrote my last post, the jury was about to begin deliberating this first Actos trial. After several days of deliberation, the jury found in favor of the plaintiffs and assessed $6.5 million in damages.

In its initial statements after the verdict, Takeda stated that it would continue to fight the many claims for personal injury and death over its diabetes medication. Initial posturing by Takeda aside, the truth is that the company faces some significant decisions. Many people have suffered tremendously after taking this medication.

The main allegation related to Actos is that it caused bladder cancer in patients and that the company failed to disclose test results which revealed this relationship. However, additional questions related to other conditions, such as liver and heart problems, have also now been raised. Takeda's choices after losing this first trial and the developing research connecting Actos to many serious health issues will be closely watched.

May 3, 2013:

I am continuing to follow the first Actos trial. In the newest development, the trial judge has thrown out the jury's verdict. In his opinion, the judge found that the plaintiff's medical expert was "not reliable." The expert opinion at issue concerns the specific plaintiff in that case and his medical history. The ruling is especially interesting since the judge did not exclude the expert's testimony at trial or issue any ruling prior to the verdict. The injured plaintiff's attorney has vowed to appeal. So, this case is not yet concluded.

Takeda still faces some tough decisions. The jury found that Takeda failed to warn adequately about the risk of bladder cancer. This finding is important, considering the large number of cases presently pending.

Prior Posts Related To Diabetes Drug Actos:

Takeda Faces The First Trial Over Diabetes Drug Actos

Whistleblower Files Suit Against Takeda Over Actos

Actos Update -- MDL Panel Consolidates Cases

Takeda May Face Thousands Of Lawsuits Over Actos

Type 2 Diabetes, Actos, And Bladder Cancer

Takeda Faces The First Trial Over Diabetes Drug Actos

Jeff Blackwell — Tue, 16 Apr 2013 12:44:38 -0600

According to Bloomberg, the first trial against Takeda Pharmaceutical over the diabetes drug Actos could soon be in the hands of a jury. Takeda faces a huge number of lawsuits claiming that its drug Actos is defective and dangerous. The Bloomberg article says that over 3,000 product liability lawsuits have already been filed against Takeda.

This first trial involves a case filed against Takeda in California. While some cases have been filed in state courts, all the cases against Takeda filed in Federal Courts have been consolidated before a Judge in the Western District of Louisiana for pre-trial purposes. Our office in Alabama has been involved in that litigation.

I have written previously about the problems in our safety system related to the approval of drugs such as actos and the similar medication avandia. I have also written several times about medical devices, such as transvaginal mesh, that are marketed to innocent consumers without adequate testing.

This first actos trial revealed significant evidence of the manufacturer's efforts to persuade the Food and Drug Administration (FDA) not to increase the warning on the drug's label. Here is an internal email among Takeda executives concerning the FDA that was cited in the article:

Actos is the most important product for Takeda and therefore we need to manage this issue very carefully and successfully not to cause any damage for this product globally.

It appears that Takeda was much more concerned with the $1.6 billion in annual actos sales, than it was the devastating injuries being reported by patients prescribed the medication here in Alabama and throughout the United States. In closing argument, the plaintiff's attorney told the jury that Takeda possessed studies revealing links to bladder cancer as early as 2004 but did not disclose the information until 7 years later. This case will be followed closely.

The purpose of the FDA is to protect us from dangerous drugs, defective medical products, and unsafe food. However, the safety and approval process has lost its focus on protecting citizens. Instead, it has become a system where safety is often delayed or denied while dangerous products needlessly cause death or severe personal injury.

The Workers' Compensation System And Its Impact On Injured Workers

Jeff Blackwell — Sun, 07 Apr 2013 12:06:19 -0600

Each year, our workers' compensation system in Alabama faces new threats from the insurance industry. In some states, like Texas, the system has been dramatically altered leaving many injured workers unable to recover and return to gainful employment. In Alabama, injured workers with a partial disability that impacts their ability to work are often compensated at an amount below Federal poverty levels. Our state has not increased partial disability payments in over two decades! While benefits to workers are over two decades behind inflation, some of our legislators continue to propose new laws that would cut off other important benefits.

What is the purpose of our workers’ compensation laws? Why were they created? A recent article titled Workers’ Compensation: The System’s Devastating Economic Impact on Workers’ Lives provides an excellent answer:

Workers’ compensation was created for two primary purposes—to provide at least partial compensation for lost wages and to pay for medical treatment and rehabilitation services for workers injured or made ill on the job.

The problem is that our system often fails these purposes. Insurance carriers routinely refuse or delay needed medical care in an effort to save themselves money. Yet, the cost to society of leaving an injured worker unable to recover for an extended period of time is much greater. Constantly, I see denials of medical care that are simply wrong. Is it right for medical care to be refused because the insurance adjuster simply ignores the requests of the treating physician for weeks? Is it right for the insurance carrier to pick a surgeon and then subject all of their surgeon’s recommendations to some anonymous medical reviewer who may not even practice medicine? Or, to deny the requested care repeatedly because of some claim as to missing paperwork that nobody understands?

Because our system does not penalize or prevent insurance carriers from wrongfully or needlessly cutting care and benefits, the entire system is dysfunctional. The first question I am usually asked by injured workers is how quickly they can get back to regular work. Yet, needlessly delaying or denying care frustrates this. That costs the worker and his or her family tremendously. It also costs the rest of us in lost productivity. The article points out the results of allowing insurance carriers to disrupt the important goals of the system:

By compromising workers’ capacity to earn a living, injuries and illnesses unleash a cascade of destructive impacts affecting access to housing and food, stability of relationships, and poverty-related health problems.

It is unconscionable that workers’ compensation places much of the economic burden of occupational injuries and illnesses on workers and their families. This makes workers’ compensation all too often the accomplice, if not direct perpetrator, in pushing workers – especially low wage workers – into debilitating economic insecurity. Injured and ill workers report depleting their savings, sometimes taking out retirement funds or even declaring bankruptcy in their efforts to cope.

All of us need the system to work. Yet, it often does not. I have seen far too many clients who were forced into selling their possessions or declaring bankruptcy after months of begging for basic medical care so they could return to work. What’s more – the long-term trend does not look good:

Because every state has its own workers’ compensation program, there’s a dangerous race to the bottom as states compete to attract businesses by reducing workers’ benefits. In addition, the largely privatized nature of the system guarantees ever-deepening power disparities between workers and employers. This skews the system to primarily represent the interests of employers and the insurance industry, ensuring that discussions on workers’ compensation and reform initiatives are focused on the cost of the system.

Costs are important. If we are going to focus on costs, we should not simply focus on the costs to insurance carriers paying claims. They collect premiums and make a nice profit. A focus on costs should focus on the larger costs to communities of having injured workers unable to return to productive employment, unable to support their families, and unable to get the medical recovery they need.

__________________________________

This is an article I originally published on a separate site I created only to discuss workplace injuries. After writing the article, it was also copied (with permission) on an insurance industry site.

Families Can Take Action In Coping With Brain Injury

Jeff Blackwell — Sat, 30 Mar 2013 21:12:11 -0600

The March calendar means basketball to some and springtime for others. However, March also marks Brain Injury Awareness Month. As this month draws to a close, I am focusing on this serious injury that deserves, from a broad perspective, increased national and state awareness. An estimated 10,000 Alabamians sustain a brain injury each year, with 2-3 males suffering for every one female.

From a personal standpoint, head injuries need greater attention within immediate families of sufferers. Family involvement is critical because the injured person may not even be aware of outward symptoms and changes resulting from an injury event such as a car crash, workplace accident or fall. While many brain injury symptoms like dizziness, unconsciousness, nausea, headache and vision changes may be immediately apparent, as time passes, others become more evident---especially to family and friends close to the person. These symptoms include:

Difficulty concentrating and remembering new information
Sleeping more or less than usual
Acting irritable/grumpy
Exhibiting nervousness or anxiety
Displaying sensitivity to light or loud noise
Feeling sadness
Acting emotional
Difficulty communicating

Often in my practice, it is the wife who has noticed the changes in the husband's behavior and prompted him to seek further medical attention and compensation.

Another issue resulting from these injuries is the inability to perform everyday tasks at home or in the workplace. Memory problems, difficulty making decisions, coping with emotional issues at work, and focusing on the steps to complete a task have left many brain injury sufferers unable to work. This problem is often compounded by mounting medical bills from the injury. Many men are reluctant to recognize and admit the severity of these issues and the hindrance they place on their ability to provide for their families. Yet, when these symptoms go unchecked and untreated, health can deteriorate. I always first advise my clients to seek good medical help from a physician with the training and understanding to help with brain injuries.

Finally, with family support and medical care in place, I encourage anyone who is facing brain injury from an accident to take the time to find a lawyer with the appropriate background and experience to handle these difficult cases. Testing for traumatic brain injury involves complicated neuropsychological assessment. Lawyers who do not understand the complex problems suffered by people with brain injuries and who are unfamiliar with the testing fail to present fully the client's story at trial. The good news is Alabama has many medical professionals dedicated to researching brain injuries and rehabilitating those who suffer from them.

Injured by a Defective Product - Who are you Hiring?

Jeff Blackwell — Mon, 04 Mar 2013 09:33:51 -0600

With the recent verdicts in California and New Jersey against manufacturers of defective transvaginal mesh products, the flood of lawyer advertisements will begin. Many women have suffered severe personal injury and disability from these products. They have questions. They need good legal help.

Alabama is fortunate to have a number of attorneys who are very skilled in handling defective product claims. The same is true for other states as well. How do you tell the good from the bad? How do you tell which ones will actually represent you as a person and not as a number? How do you tell which ones actually know how to prepare a case for trial?

In the last week since the latest mesh verdict, I have received several mass emails from lawyers claiming they are "national law firms" and seeking these cases. One attorney from another state even called me. I looked him up to see his credentials. What I found was a solo attorney with a new law degree and a brand new firm. He did have experience in creating websites prior to law school. Was he really going to handle complicated defective product claims from places throughout the Untied States? Do you think he understood the specifics of Alabama law and how they differed from other states? Do you think he had ever tried a case or even examined an expert witness? I suspect his intentions were different - get the case and refer it to another lawyer.

This brings me back to my prior question - How can you tell the good from the bad? How can you tell which lawyer to hire? After all, you are entrusting a very serious matter to this person. You can do several things to help make this decision. Here are some questions to ask:

Does the lawyer have real experience handling complex cases in your state? For me, that is Alabama. Each state has unique legal rules. Lawyers who don't understand these rules can quickly ruin a good claim.
Does the lawyer prepare his or her cases? This may sound like a silly question. However, too many lawyers fail to prepare their cases. Consistently good results come with consistent preparation. If you have ever played sports, then you know that all the hard work in practice is what separates the championship teams from everyone else.
Does the lawyer have the desire to go to trial if needed? Trial is like war. Reasonable clients do not want to go to trial. However, sometimes trial is needed. Will your lawyer go to trial? Does he or she even know what to do in trial?
Does the lawyer care about you as a client? When I first graduated from law school (18 years ago), an old lawyer told me that all lawsuits are personal. He was right. They are about real people who are hurting. A good lawyer should not only be good at dealing with the legal issues, he or she should respect you as a client.

How do you get answers to these questions:

Ask people that you trust in your community.
Research the attorney. Any attorney can create a website that claims they are an expert. You should dig a little deeper than the attorney's own website. Many attorneys have profiles on LinkedIn or Avvo that contain information concerning their professional background. Avvo even rates lawyers as does Martindale-Hubbell. Many attorneys have also published information that can often be easily found on the internet.
Talk to the attorney. I interview every potential client in detail before taking a case. That time is important. I find out about your case. I also get to know you in order to decide if we can work together on your case. I am shocked by the number of people who hire lawyers they have never even met. In many cases, the client meets only with a paralegal or, even worse, simply receives paperwork in the mail and returns it upon completion.

Clients who are hurt need an attorney with the ability and desire to really prepare their case. The insurance companies and drug companies have plenty of money to hire skilled lawyers for their defense. Before you hire a lawyer to pursue your claim, ask a few questions to make sure you get representation that is up to the task.

Mesh: Concerns and Questions

Jeff Blackwell — Wed, 27 Feb 2013 13:24:33 -0600

Transvaginal mesh and its complications made headlines this week as a jury reached a $3.35 million compensatory damages verdict in a New Jersey Court, with punitive damages to follow. This bold action ignites concern and questions for thousands of other women implanted with the same device.

What is transvaginal mesh?

Transvaginal mesh is a medical device used to repair weakened or stretched tissue caused by conditions such as pelvic organ prolapse (POP) and stress urinary incontinence(SUI). The mesh is made from relatively cheap synthetic materials such as polyester and polypropylene (developed from petroleum). Surgical mesh is inserted through the vagina during pelvic surgery. 79,500 of these profitable devices were sold in 2010 at $2,000 apiece in the United States. In one of our cases, the Alabama surgeon performing the procedure told a patient he implanted 3-5 devices a week.

What conditions are transvaginal mesh used to treat?

Pelvic organ prolapse (POP)
Stress Urinary Incontinence (SUI)

What are the complications of transvaginal mesh?

Pain
Infection
Bleeding
Scarring
Erosion of Tissue
Incontinence
Bladder Injury
Bowel Injury
Pain During Sexual Intercourse

According to an article in the July issue of Nursing 2009, Volume 39, Issue 7, "a patient, 67, had a transvaginal repair with synthetic mesh for pelvic organ prolapse. Four weeks later, she reported spotting, discomfort, and vaginal irritation. The surgeon found that the surgical mesh had eroded into her vagina and prescribed estrogen cream for a month, but it wasn't effective. The patient needed more surgery for resection of the exposed mesh and closure of eroded tissue." The injuries reported in this journal article are similar to those we have heard from many women while investigating these claims.

Has transvaginal mesh been tested and studied?

Available data on transvaginal mesh is limited, as testing of the device prior to placement on the market is inadequate. As a result, venerable organizations, such as the American Congress of Obstetricians and Gynecologists (ACOG), recommend that clinicians be vigilant for possible adverse events from mesh.

A review by the Society of Obstetricians and Gynaecologists of Canada (SOGC) found that 5-19% of the surgeries using mesh had erosion and 18% of women developed pelvic muscle dysfunction and pain. Similarly, a recent study by Danderyd Hospital in Sweden concluded that surgeries using mesh resulted in higher rates of surgical complications and postoperative adverse events than the traditional colporrhaphy surgery.

Are there government warnings for the use of transvaginal mesh?

The FDA alerted the public in 2008 to the complications associated with transvaginal mesh and followed with an update in 2011 reporting that the complications were not rare.

Has transvaginal mesh been recalled?

Johnson & Johnson recalled and removed vaginal mesh products associated with these complications from the market in June 2012.

Are the vaginal mesh manufacturers facing lawsuits?

Women across the country are taking action against the manufacturers of these surgical mesh products in an effort to battle the staggering medical costs, lost wages and other quality of life issues that have taken a beating due to this faulty product. The recent lawsuit involving $3.35 million in compensatory damages follows a a similar mesh lawsuit in California resulting in a jury decision of $5.5 million.

What companies manufacture transvaginal mesh?

Johnson & Johnson/Ethicon
American Medical Systems (AMS)
Boston Scientific Corporation
C.R. Bard
Coloplast

What to do if you have had complications with vaginal mesh:

I always stress to my clients that they should get the best medical care as quickly as possible. If you choose to seek legal counsel, look for a lawyer who has actual trial experience helping people who have suffered severe injuries and disabilities. Too many television lawyers simply push paper. The women injured by these products deserve an attorney with the knowledge, skill and desire to pursue their case to the courtroom if needed. I would be happy to answer any of your questions at (256) 650-5500.

Related articles:

Mesh Problems and No Where to Turn: Will A New Jersey Jury Offer Hope?

Jeff Blackwell — Tue, 19 Feb 2013 21:18:42 -0600

The eyes of the medical community are on a courtroom in New Jersey as a second case involving transvaginal mesh injury is in the hands of a jury. The first trial, in California, resulted in a $5.5 million verdict against the mesh manufacturer.

My own North Alabama legal team counsels women with their own personal stories of anguish and suffering at the hands of companies like Johnson & Johnson's Ethicon who have manufactured vaginal mesh to treat pelvic organ prolapse (POP) and female stress urinary incontinence (SUI). In a rush for profits, the manufacturers pushed their products without proper testing. Patients, including my own clients, relate heart-wrenching accounts of bleeding, scarring and excruciating pain as the mesh erodes their flesh. Such complaints have led to an FDA warning on the failure of transvaginal mesh.

I recognize the bravery and sense of futility leading women to come forward, as these are personal issues that demand discretion and respect.

While the side effects are a threat to health, the problem is compounded by difficulty in securing follow-up care to remove the device. Some women are left unable to work or care for themselves. As my associates and I pursue multiple cases against these manufacturers, we have heard firsthand the burden on these women and their families. Failing health along with disability and loss of quality of life is difficult with no where to turn. My team's philosophy is a personal approach to alleviate this burden. We treat each case as unique, reviewing each document and record along with attempting to interview the physicians treating the patient.

Currently, there are over two thousand pending vaginal mesh lawsuits in the federal court system. While this is a large issue affecting many and involving a host of counsel, my eyes look toward New Jersey with my North Alabama clients in mind. I anxiously await the verdict in New Jersey--will the problems be recognized and addressed? Is there hope that my clients' burdens will be lightened?

Among the companies facing claims over their defective mesh:

Johnson & Johnson/Ethicon
American Medical Systems (AMS)
Boston Scientific Corporation
C.R. Bard
Coloplast

If you have had an experience with mesh similar to what I have described, please feel free to contact me at (256) 650-5500 to have your case reviewed by my team.

Plaintiffs' Verdicts Routinely Rejected On Appeal In Alabama

Jeff Blackwell — Sat, 26 Jan 2013 16:38:58 -0600

The Alabama Supreme Court reversed verdicts for the plaintiff in 72% of the cases it decided during the last 10 years. A recent study of court decisions revealed this troubling fact. Really, were almost 3/4 of the plaintiff's verdicts wrong?

I have a problem with a percentage that huge. My problem is simple -- civil cases that lack merit rarely, if ever, make it that far. By the time a case reaches an appeal, the plaintiff has survived countless pre-trial motions testing the claim. After these, comes the trial. In Alabama, a plaintiff only wins a civil trial if the verdict is unanimous. All 12 jurors must agree. Then, you still aren't finished. If the plaintiff wins the trial, he will likely face numerous post-trial motions.

If the Alabama Supreme Court is correct and 3/4 of those verdicts were bad, then the problem lies with the trial courts and juries. But, I don't think it does. In North Alabama, we are fortunate to have many excellent trial judges. They work tirelessly to review the cases before them. In addition, the citizens who serve on our juries care deeply about getting to the truth and making the correct decision. I've sat in the courtroom after closing arguments and waited while jurors carefully considered and discussed every piece of evidence in order to make the right decision. I believe our jurors care deeply about making the right decision. And, I believe that most of the time the local judges and jurors get it right.

What does concern me are our appellate courts in Montgomery. The combination of huge election contributions from groups that may not be interested in fair justice, the partisanship of current elections, and a tendency to issue opinions without written decisions explaining them, all cast a shadow over our appellate courts. Whether their decisions were correct or not, it's time to address some of the issues that call our appellate courts into question.

Is It Time For Alabama To Change The Way Judges Are Selected

Jeff Blackwell — Fri, 11 Jan 2013 09:29:01 -0600

Partisan elections -- Is there a worse way to select judges? That's the question Judge Vowell of Birmingham asks in a recent article.

Alabama's partisan judicial elections have been among the costliest in the United States. Does anyone really believe that the influence of money and partisan politics in elections has no impact on our judicial system? In a prior post, I discussed the shadow that big money casts over our judicial system. In another series of prior posts, I discussed the recent saga in Huntsville where a political party basically selected a judge for us through a series of closed meetings.

Judge Vowell also raises an additional problem created by partisan elections. As he noted, many good judges lost in our most recent election simply because of the party designation next to their name on the ballot. This is not the best way to select a judge. We should be focused on choosing the best judges possible. This choice should involve a consideration of the person's legal skill, ethics, and temperament. The choice should not simply be a vote for the candidate with the right party designation at the right time and in the right place.

Alabama Prepares to Enforce Mandatory Insurance Law for Drivers

Jeff Blackwell — Wed, 26 Dec 2012 10:51:46 -0600

A personal injury from a car collision can be devastating. When another driver causes the crash and hurts you, he or she should take responsibility for your injuries. In Alabama, drivers are required to have liability insurance to protect others from their negligence. That's the law. It's important for our protection as responsible drivers.

The problem is that for many years, the police were unable to verify that drivers actually had insurance coverage. In Alabama, the problem with uninsured drivers causing personal injury to others on our highways was especially bad. A recent study indicated that Alabama had the 6th highest rate of uninsured drivers. To put that in perspective, it is estimated that currently 22 percent of Alabama's private vehicles don't follow the mandatory insurance law.

Beginning in 2013, Alabama will have an online verification system for law enforcement. Now, the police officer can check insurance coverage at the same time he checks the driving record of an individual. Alabama officials say the online system is ready.

This is an important development. The injuries and damages caused by uninsured drivers on our highways harm all of us. Those injuries devastate the victim and his or her family. But, the damage goes beyond just the accident victim. All of us pay the costs of accidents caused by drivers who are uninsured.

Safety Manager Puts Profits Over People -- Provides False Injury Numbers To Earn Huge Bonus

Jeff Blackwell — Tue, 11 Dec 2012 10:40:51 -0600

In a post on the Alabama Injured Worker Forum, I wrote that Worker Safety Should Be A Top Priority For Government Contractors. Unfortunately, many government contractors put profits over safety. The result is too often a needless personal injury that devastates the worker and his family.

In November, a jury convicted the former safety manager at the Shaw Group of providing false and misleading information about injuries. The Shaw Group is a large government contractor. The fraud occurred at several Tennessee Valley Authority (TVA) facilities, including Brown's Ferry Nuclear Site near Athens, Alabama.

What did the contractor fraud involve? The company's safety manager generated false injury rates used by the Shaw Group to collect safety bonuses worth over $2.5 Million from TVA.

The evidence at trial revealed a picture of gross misconduct. The jury heard evidence of over 80 injuries, including broken bones, hernias, shoulder, and back injuries, that were not properly recorded.

Each of these serious personal injuries represents a real person whose safety should be valued. A real person who worked and contributed to the company. A real person who may not get the medical care he or she needs because their injury was not reported.

Will this conviction have any impact on this company's ability to obtain future government contracts? Our government should make safety a top priority for its contractors.

Personal Injury Lawyers and the Value of Client Service

Jeff Blackwell — Fri, 30 Nov 2012 12:26:23 -0600

I will occasionally review past posts to my blog. I always find it interesting how legal issues develop over time after writing a post. I also find it interesting to see which posts have generated the most views and feedback. The results are often different than I expected.

Almost 3 years ago, I wrote a post on the potential problems of confidentiality clauses in settlement documents. When I wrote the post, I did not think it would be widely viewed. After all, the topic of settlement agreements sounds a little boring. In addition, the post certainly did not involve any issues in the news at the time. Yet, that post has generated a huge number of views. It has been read and copied many times.

As I read the post again today, I began to reflect on several larger issues where I believe that our profession of trial lawyers fails its clients. These failures are especially true in the area of personal injury cases.

To a large degree, I believe some lawyers have forgotten that we are professionals. In Huntsville, and other areas throughout the state, we now have lawyers with catchy slogans advertising how fast they can get you a check. These lawyers are all over billboards and television. They are rarely (never) where a trial lawyer should be -- a courtroom. I suspect most of them would have an immediate heart attack if forced to enter a real courtroom. Ask a local lawyer who does go to court if he or she has ever seen these slick TV lawyers around the courthouse and you will get a clear NO.

Where do personal injury attorneys, in particular, often fail their clients:

THEY DON'T PREPARE THEIR CASES FOR TRIAL -- This is probably the biggest failure among attorneys who advertise themselves as personal injury attorneys. We are fortunate to have many good personal injury attorneys in our local community. Those good ones take their cases seriously. They don't view cases as quickie settlements. They view cases as real problems suffered by real people. These real clients deserve your best. Of course, most cases settle before going to trial. However, the best results, whether by trial or settlement, usually come when an attorney consistently prepares every case for trial. If you don't believe me, then an article in Forbes discussing how much insurance companies love settlement mills because serious cases are resolved at a discount to their full value may open your eyes.
THEY DON'T PROVIDE FULL REPRESENTATION -- Sometimes, people suffer injuries in situations that don't fit the cookie cutter mold. What do I mean? I know lawyers who say they handle only personal injuries in car accidents or who say they handle only workers' compensation injuries. What about the person who is hurt in a car accident while on the job. That situation involves both a typical personal injury claim and a workers' compensation claim. If an attorney tells you they are only going to handle one part of the complete claim from the accident, then you are probably not getting the best service.
THEY DON'T PROTECT THEIR CLIENTS AT THE END OF THE CASE -- My prior post on confidentiality clauses touches on legal issues at the end of a case. It reminds me of the old saying - "The devil is in the details." I think some attorneys conclude a case and fail to tie up the loose ends. But, settlement language and issues can create whole new problems for your client. In personal injury cases, the plaintiff often had health insurance that paid part of their medical bills. That health insurer or plan may have a lien, that is a legal right to reimbursement out of your recovery. A good personal injury attorney should consider and deal with the health insurer in order to save the client money. Also, some settlement papers create additional obligations on an injured party such as requirements to pay people and requirements to maintain confidentiality. These are important details that can haunt you later if not handled well. Unfortunately, too many attorneys fail to address them.

I certainly don't intend to be negative. I enjoy helping clients. Most of the attorneys that I know feel the same way. The problem is that a few attorneys who neglect the details of their clients and cases, harm the reputations of all the rest.

Current Issues in Workers' Compensation Discussed at Seminar

Jeff Blackwell — Wed, 21 Nov 2012 15:23:54 -0600

Earlier this month, Cumberland Law School sponsored its 26th Annual Workers' Compensation Seminar. The speakers at this excellent program included a Judge on The Alabama Court of Civil Appeals and a well-known orthopedic surgeon. One of the afternoon sessions included a panel of four attorneys answering questions from the audience related to workers' compensation in Alabama. I was honored to serve on that panel. The four of us represented diverse areas of the state. While my office is in the Huntsville / Decatur area, the other three panel members came from Dothan, Mobile, and Tuscumbia.

We discussed a number of very interesting issues and concerns related to workers' compensation and medical issues. Three issues seemed to generate a significant discussion as well as a lot of questions. These were:

Closing Medical Benefits
The Impact of Social Media (including Facebook) on Claims
The Future of Alabama's Workers' Compensation Act

These are significant issues impacting workers' compensation in Alabama. The first issue involved medical benefits. The workers' compensation laws in Alabama provide employees with rights to medical treatment in the event of a work-related injury. The system should be simple. Sometimes, it is not. In many instances, insurance carriers take advantage of the injured worker and try to avoid the cost of medical care. These insurers practice a form of cost-shifting. That is, they try to pass their obligations onto families and the government.

When should a worker give up their right to medical benefits? The question does not have a simple answer. It involves a number of issues. This can include Medicare. In some instances, the insurance carrier has manipulated the injured worker into a situation where he or she feels that they have no other choice. In other instances, the worker has retained an attorney who either does not truly understand this area of the law or does not place the client's interest first. Yet, closing medical benefits in the wrong situations can leave an injured worker unable to get the medical treatment needed.

I generally advise my clients NOT to close their right to medical care. In my opinion, this is an important right that should be protected. I also believe that far too often attorneys are not serving their clients properly in this complex and important area of the law.

The second issue involved social media. Social media, like Facebook, can have a huge impact on a personal injury or workers' compensation case. I routinely include a search of social media sites as part of my investigation. I have found valuable information related to defendants in personal injury cases. I have also found valuable information concerning witnesses and even experts. It is amazing what people will post. Facebook is both a great tool for investigation that may help your case and a bomb that can destroy your case. Attorneys who handle personal injury, workers' compensation, and other types of litigation, need to understand the impact of social media and how to advise their clients accordingly.

The third issue involved the future of Alabama's Act. In recent legislative sessions, we have seen proposals that would drastically change Alabama law. In my opinion, these proposed changes are not fair and would greatly harm working people in our state. I have argued extensively against these changes in a previous post on this site as well as two posts, here and here, on another site dedicated to work-related issues. Weakening our workers' compensation laws will only hurt our communities that must bear the costs of a disability.

Traumatic Brain Injury Takes A Toll On Families

Jeff Blackwell — Wed, 14 Nov 2012 14:01:10 -0600

A traumatic brain injury (TBI) can devastate an entire family. Over the years, I have met many families struggling to help their loved one function after such an injury. Earlier this week, I read an article in an Alabama newspaper that told the story of a wife caring for her husband who had been changed dramatically due to a TBI. The article told a story that I hear far too often in personal injury cases involving TBI. I felt I had to post it.

Here is a great truth from the article that tells the struggle of family members to provide care and cope with the injury:

Unless you live with someone who has traumatic brain injury, it's difficult to understand the impact of it.

People who are suffering traumatic brain injury often "look" healthy to others. However, "looks" really are deceiving. The person who has suffered TBI can undergo a complete change in personality or function that affects everything in his life, including his family, his friends, and his work. Those family members closest to the person often face great difficulties providing care and continued support.

When I am asked to investigate a personal injury case involving a TBI, I want to talk with the person's family, close friends, and co-workers. These are the people who interact with the injured person on a daily basis and can tell the rest of us about the true extent of the person's injury. Their stories are often very emotional.

The Alabama Head Injury Foundation offers resources concerning TBI. The Foundation is participating in research to understand better the impact of TBI on family members and caregivers. The Foundation's website lists a number of losses associated with TBI. Here is what the website says about the families of those suffering an injury:

Initially the family's sense of relief that their loved one is still alive changes to an uncertainty about the future, followed by a growing awareness of potential changes in physical, cognitive, behavior, emotions, social skills and communication . Gradually the full extent of the damage caused by brain injury becomes clearer. The person may behave differently, no longer functioning as before, and may seem as a totally different person. Even those closest to the person may only realize later that the brain injury has changed the course of their lives as well. Life's usual expectations no longer apply and the future becomes blurred resulting in uncertainty for all involved
People with brain injury want to move forward in their lives again after brain injury. The desire to regain full or partial control over one's life and to make something out of it can be very powerful. Facing an uncertain future can be overwhelming, but with the help and support of friends and family, as well as understanding from a caring community, and partnerships with helping professionals, life can take on new meaning.

Traumatic brain injuries take a toll on entire families. It is important for us to consider and support not just the injured person but the close family members and caregivers who also face great difficulties.

Upcoming Seminar -- Advanced Personal Injury

Jeff Blackwell — Sun, 14 Oct 2012 16:55:45 -0600

Ask most lawyers and they will tell you that seminars are typically boring. You sit in a bleak, windowless conference room. At the scheduled time, the speaker stands. The speaker then drones on and on until his time expires. By lunch, the audience is desperate for a break. After lunch, the audience is struggling simply to stay awake.

Yet, these boring events are a necessity since our profession requires hours of continuing education each year. But, seminars don't have to be boring. They should not be boring. They can, and should be, events where lawyers gather to mentor each other in their areas of practice.

I try to teach at least one seminar each year. I view these seminars as a great opportunity to meet other lawyers and to discuss issues important to my law practice. In the past few years, I have had the opportunity to speak a few times on issues including personal injury, products' liability, and workers' compensation. Typically, my goal is to get the audience discussing the topic. Questions and feedback are welcome. When successful, I usually leave the seminar feeling as if I learned as much as the audience.

On several past occasions, these seminars have been hosted by the National Business Institute. In a couple days, I will again be speaking at one of their seminars in Huntsville titled Advanced Personal Injury: Mastering Your Practice. My topics will include jury selection and opening statements. This should be a good time. I would invite any local attorneys to attend.

Justice -- Should Private Companies Help Enforce the Law?

Jeff Blackwell — Tue, 09 Oct 2012 18:50:31 -0600

An article on Alabama Live asks the question - Should Private Companies Help Alabama Cities Enforce the Law? It's an important question. Yet, I think the discussion is much larger. Should private groups administer justice in our communities?

The Alabama Live article discusses the recent developments in Harpersville, Alabama. As the article states about the issues in Harpersville:

[A]n Atlanta-based private probation company has been blasted by a state judge for being part of a 'judicially sanctioned extortion racket.'

What role should private companies have related to our government? We need private companies to perform many projects. Roads and schools must be built. Necessary services must be provided. Private companies have important specialties necessary to meet vital needs in our communities.

Outsourcing services to private companies is not new. The problem is that in recent years the type of outsourcing has changed. We are no longer talking just about private companies performing needed services such as collecting garbage, building roads, or maintaining electrical grids. We are now seeing a very different development:

[I]n recent years, cities and counties throughout Alabama have begun outsourcing of a different kind - one that delegates power and authority over citizens.

In Alabama, this trend in outsourcing means private companies are now administering parts of our justice system. The use of private companies in areas where our government exercises power and authority over citizens is troubling. Private companies have very different interests than our government which is limited by the Constitution. Although private companies lack the same limits on their conduct, they will often argue in cases involving government functions that they should have the same immunity from being sued as the government. In addition, these companies are performing government functions but are not subject to the same requirements of openness and transparency as our government. In essence, private companies performing vital government functions involving control over citizens often have the best of both worlds - lots of profit with zero accountability. That is wrong.

Although the article discusses Alabama, the same trend is occurring on a Federal level. On a Federal level, this trend is not limited simply to outsourcing by our government in its own contracts. It also means the endorsement and use of binding arbitration in basic legal disputes involving citizens - where decisions determining justice are made by private groups and individuals instead of our courts. Think that arbitration does not apply to you? Think again. The enforcement of arbitration clauses often means that consumers (like you) are completely denied access to the courts. It even means that elderly personal injury victims (and their families) in nursing home neglect cases often cannot have their claims heard by a jury. The privatization of justice through arbitration undermines our rights as citizens.

Private companies bring needed expertise to many important projects. At the same time, protecting citizens and delivering justice is a role of government. Where should we set the limits?

Instant Verification for Liability Insurance in Alabama Becomes a Reality

Jeff Blackwell — Mon, 24 Sep 2012 08:22:20 -0600

A 2011 study concluded that Alabama has the 6th highest rate of uninsured vehicles among all states. That statistic should alarm all responsible drivers on Alabama roads.

Alabama law has required drivers to carry liability insurance for many years. This coverage is very important. Yet, a few drivers fail to act responsibly before driving and put the rest of us at risk. For years, Alabama has lacked a system to check drivers for this coverage before they expose others to personal injury on our roads and highways.

I have written on two prior occasions about the need for Alabama to have a system of instant verification. Such a system would allow law enforcement to verify liability coverage of drivers. In 2011, the Alabama legislature passed a law designed to create such a system. Finally, as today's article in The Montgomery Advertiser states, Alabama ready to get tough on uninsured drivers. This is a good article on how our state is adopting this needed protection for drivers who suffer personal injury through the fault of another. Alabama is moving forward with its system of instant verification. Hopefully, this system will mean fewer uninsured drivers on our roads in the future.

Trial Theme & Structure -- A Compelling Story

Jeff Blackwell — Sat, 15 Sep 2012 19:06:43 -0600

I recently read an interesting article from a successful appellate lawyer in Alabama, Mike Skotnicki. The article is on his blog. Mike discussed storytelling in appellate briefs. When attorneys think of appellate arguments they often picture a panel of scholarly judges discussing the finer of points of legal issues.

Mike presented an interesting study concerning the impact of storytelling in appellate briefs. In the cited study, a panel of appellate judges was provided two briefs. One brief presented solely logical arguments. The other incorporated a strong storytelling element. Most of the readers found the brief incorporating storytelling to be much more persuasive. I started my career writing appellate briefs. I can say that I probably spent 90% of my brief writing time telling the compelling story presented by the facts and only about 10% of my time making the legal arguments. Real cases involve real people and real problems. Their stories are personal and compelling.

The study cited by Mike considered the impact of storytelling just on appellate judges. However, all of us are hard-wired to be moved by compelling stories.

Too many attorneys view a trial, and especially the opening statement part of the trial, as an opportunity simply to stand up and tell as many facts and events as possible. These attorneys simply state facts with no theme or structure. I call this the "spaghetti" approach. Just throw all the facts against the wall and see what sticks. I've watched these "spaghetti" openings and have been left confused as to the real story of the case. I could see the same confusion on the jurors' faces as well.

On the day you first meet with your client, you need to listen to his story. You need to really listen as your client tells you the story that led him or her to your office. You need to engage your client and ask questions. You should begin thinking of the compelling story that is his or her case.

Trials are about compelling stories. Why are we here? We are here because someone broke the rules causing struggle, injury, or loss in others. If your clients are important to you (and they should be) then you will listen to them and prepare to tell their compelling stories at trial.