Pennsylvania Injury Law Report

Stuart A. Carpey is Proud to Announce the Winner of the Essay Contest He Held for the Students of The Rising Sons of Philadelphia!

Stuart A. Carpey — Mon, 14 May 2012 15:47:27 -0500

Last month, I held an essay contest for the students involved in The Rising Sons of Philadelphia, a nonprofit organization which aims to reverse negative trends in urban communities. The students were asked to write a short essay relevant to my work. And now that the entries have all been read, we at Kreithen, Baron & Carpey are proud to announce that Sajan Lama, age 14, is the winner of the contest! For first prize, Sajan will receive a brand new iPod. Congratulations, Sajan!

Here is Sajan’s winning essay:

What is an Entrepreneur?

By Sajan Lama

An entrepreneur is a person who organizes and manages business undertaking risks and making financial decisions. It was an honor to meet an inspiring personality as Stuart A. Carpey while, he came to visit our basketball team, Rising Sons. Mr. Carpey is a very good example of an entrepreneur who has successfully taken the risk to open his own business. He gave us insights of being an entrepreneur and shared brilliant information with us. He also provided us with many suggestions and advices and answered all our questions.

In the future, I want to become a lawyer so, the information that Mr. Carpey shared with us was very interesting and informational to me. One of the things that really inspired and stick with me was how he worked very hard, put all his time, energy and effort on getting justice to an injured person when he isn’t even sure if he will get paid for his work. The job that he is doing right now is very risky, financially wise and that made me question if I wanted to take the same risk in the future. It made me question, “If I would want to take a risk of not getting paid a single penny without the job done successfully. Even worse until you actually win the case.”

However, looking up to Mr. Carpey who has been able to take that risk in life and has been very successful I am inspired to take the same path in the future. I am very thankful to Mr. Carpey for sharing his experiences and giving us advices. I hope he will continue to share his experiences and advices to children like us so; we can be motivated and encouraged about our future goals.

Stuart A. Carpey Sponsors Montgomery County Community College's Annual Student Essay Contest

Stuart A. Carpey — Thu, 26 Apr 2012 13:43:36 -0500

On April 16, I attended the awards reception for Montgomery County Community College's (MCCC) school-wide student essay contest, held in the campus's Barnes and Noble bookstore. The contest, which was sponsored by my firm Kreithen, Baron & Carpey, gave awards to three students for their exemplary essays. The contest winners were:

First Place: Galia Godel, for her essay "Fetish, Faires and Fashion: The Acceptance of the Modern Corset"

Second Place: Sara Calcinore (pictured right), for her essay " Fast, Fatty and Frugal"

Third Place: Jodie Hair (pictured left), for her essay "More."

I was extremely proud to sponsor the essay contest and to meet with the very talented writers who took home prizes! The reception brought in many of the esteemed members of MCCC's English department, including event organizer Dana Resente. Thanks to everyone for making it a great experience!

Kreithen, Baron & Carpey is always happy to support enriching community events and organizations.

Is Pfizer Inc. Vulnerable to Lawsuits Because of Their Birth Control Pill Mix Up?

Stuart A. Carpey — Mon, 02 Apr 2012 13:22:51 -0500

On February 1, 2012, Pfizer, Inc. announced that it is recalling 14 lots (roughly one million packets) of birth control medication, Lo-Ovral-28, Norgestrel, and Ethinyl Estradiol. The company says the ratio of active to inactive pills in these packets is incorrect due to labeling errors, a fact which will render the pills useless.

Obviously it is not unusual for a woman to miss a pill now and then; and often it is ok as long as she takes the pill as soon as the error is noted. In the case of the Pfizer fiasco, however, there is no way to know which pills in the pack were faulty. Pfizer has released the lot numbers of the affected medication on their website, a step which will help customers to figure out if they in fact have been taking the ineffective drug.

In addition, the corporation is urging women who have used the product to begin using a non-hormonal form of contraception immediately. The FDA is also recommending that all women potentially affected by the mishap should call their doctors immediately.

Regardless, the damage is done, and the big question remains: Is Pfizer Inc. vulnerable to hefty damage claims because of this mishap? Despite what some pundits have said on the news, the answer is maybe. Any such lawsuit would have to be brought in a jurisdiction that permits these types of causes of action. While it is possible that class action lawsuits might be filed in other states, Pennsylvania law is explicit when it comes to wrongful birth and wrongful life cases.

Pennsylvania law does not recognize damages in a wrongful life action. A wrongful life action amounts to a child plaintiff suing a doctor or other medical provider for failing to prevent the child’s birth. It is a complex matter which many agree relies heavily on the question of “life versus non-existence.” And as attorney Sean Wajert wrote, the question of whether a child should have been born is an issue “more properly to be left to philosophers and theologians.” In fact, ten states--including Pennsylvania--have banned civil actions for wrongful life.

Nor does Pennsylvania recognize damages in a wrongful birth action. In this type of action, it is the parents who are suing, rather than the child. The issue here is if they had known that the child would be born with a birth defect, for instance, the parents may have aborted the pregnancy. Not having sufficient information of the health of the baby in vitro deprives the parents of the choice of having or not having the child.

The applicable Pennsylvania statutes that apply are 42 Pa. C.S. Sections 8305 and 8306.

Damages in these cases, in state that do allow them, are measured by the lifetime cost to care for the child.

In short, most states, Pennsylvania included, disfavor wrongful birth and wrongful life causes of action. And while it is entirely possible that Pfizer will face litigation for its errors, even if a woman gets pregnant these will be difficult cases to win against the pharmaceutical company.

My Meeting With Rising Sons Of Philadelphia

Stuart A. Carpey — Mon, 26 Mar 2012 11:59:48 -0500

On March 12, the Rising Sons of Philadelphia invited me to speak with the students involved in their program. Rising Sons is a non-profit organization that aims to reverse negative trends in urban communities. The program enlists underprivileged teenagers, providing them with the knowledge and experience to help them excel in their adult lives. I met with ten students involved with the Rising Sons. The kids had no shortage of questions, asking me about my business, the kinds of cases I handle and the type of law I practice, and if I had ever argued a case before the US Supreme Court! We hope to make this a regular meeting with me being a kind of mentor. Next month I'm shooting hoops with them so I have to ditch the suit.

Chamber Of Commerce Complains In West Virginia

Stuart A. Carpey — Thu, 22 Mar 2012 14:45:58 -0500

So should Pennsylvanians care?

Here's why we have to be concerned about what the Chamber of Commerce is complaining about in West Virginia. There is a nasty legislative fight going on there concerning a piece of legislation that would require insurance carriers to provide the amount of their insured's bodily injury policy limits to personal injury claimants and their attorneys before suit is filed. Proponents of the bill, such as West Virginia House Judiciary Chairman Tim Miley, take the position that the objective of the bill is to reduce litigation. Getting policy limits information pre-suit is relevant information that is typically not disclosed by insurance companies until suit is filed. In other words, why force a lawsuit just to obtain the information?

I agree with Miley and here's why.

In Pennsylvania, if I represent someone injured in a car accident , as in West Virginia, the opposing insurance company is not required to disclose their insured's policy limits unless and until suit is filed by me on behalf of my client. In reality, obtaining the amount of the defendant's coverage is largely dependent on a number of factors, including:

Which insurance company is involved;
The level of experience or lack thereof, of the insurance representative assigned to the claim;
The degree of injuries sustained by the plaintiff;
The amount of unpaid medical bills incurred by the plaintiff;
The amount of wage loss incurred by the plaintiff;
The county where suit will be filed.

State Farm and Allstate will rarely if ever disclose policy limits pre-suit. American Independent invariably only writes polices for the minimum amount of coverage, $15,000. If it's a Chubb Insurance Company policy and the defendant lives on the Main Line, more than likely it's not a $15,000 policy, but rather a much larger policy. If the defendant is a business, there will be a commercial policy with at least $1,000,000 in coverage.

So, some things we know going in, whether or not suit is eventually filed.

There are many cases where I am forced to file suit, only to receive a telephone call from the defense attorney assigned to the case immediately after the lawsuit is served on the defendant, and he or she will tell me the amount of the defendant's policy limits. They have to at that point. It is discoverable information under the Pennsylvania Rules of Civil Procedure. There's no reason to hide that information any more.

Does holding back the amount of an insured's bodily injury limits accomplish anything? No, it does not.

The Chamber and their political cohorts see it differently. The Chamber goes out of its way to oppose anything pro-consumer. And, as succinctly stated by Max Kennerly in his recent blog post, Chamber of Commerce Swings And Misses At Plaintiffs' Lawyer Advertising:

Don’t kid yourself that the U.S. Chamber of Commerce cares the slightest bit about small business. The Chamber is the most anti-free-market lobbying group in the country, an organization dedicated to ensuring the biggest corporations in the country stay that way, squashing small businesses and regular people alike.

Max's post points out that the Chamber essentially posits that lawyer advertising should be limited, restricted, monitored more so than other businesses. He criticizes, correctly so, a recent "study" by the Chamber's research arm, The Institute For Legal Reform which stated:

The plaintiffs’ bar contributes to the commercialization of the legal profession by using a sophisticated and complex combination of paid search advertising and high organic search optimization of websites to generate site traffic – all with the goal of collecting the personal contact information of potential plaintiffs.Plaintiffs’ firms are devoting millions of dollars to the creation and maintenance of websites, Facebook pages, Twitter handles, blogs and YouTube channels.

No doubt Plaintiff's attorneys are spending money on online marketing. So are other attorneys. So are other businesses!

The Chamber's position is that lawyers should not be as free to market online as other businesses. Guess what? Lawyer advertising is restricted already. How we advertise, what we say, and how we say it is already controlled and restricted by the Bar in each individual state. No other business is restricted in how they advertise, but lawyers are.

As far as I am concerned, the more information that is available to the consumer the better. I am much more concerned about someone who lets their personal injury claim lapse because of lack of knowledge of the statute of limitations (the kind of information freely and readily supplied on my website as well as on other plaintiff lawyer websites) than of lawyers spending money to create an online presence.

The Chamber doesn't view things that way. The less information the public has, the better positioned big business is to prevent the filing of lawsuits seeking compensation for legitimate claims for damages.

Stuart A. Carpey Helps to "End Distracted Driving"

Stuart A. Carpey — Fri, 09 Mar 2012 13:53:03 -0500

For years, Stuart A. Carpey has been an active member of Teens Against Distracted Driving (TADD), a program which aims to educate teens on the dangers of multitasking at the wheel. Now, in addition to these efforts, Stuart is teaming up with End Distracted Driving (EndDD.org) to do even more in the fight against accidents caused by inattention.

EndDD.org is a non-profit organization dedicated to reducing the number of auto accidents caused by driver distraction. The organization was founded in 2009 and has been expanding ever since, enlisting skilled speakers to spread the word about their cause. Stuart A. Carpey is now one of those speakers.

If you know of any group, community organization, or school which you feel could benefit from a presentation on the subject of distracted driving, please contact Stuart at scarpey@carpeylaw.com. He speaks on the subject free of charge. His presentations are compelling and important for teens and adults alike.

You may be aware that the largest culprit for this growing danger is the use of cell phones--particularly texting--at the wheel of a car. But there are more ways to become distracted than just using your cell phone. Here are the three major forms of driver distraction:

Visual Distraction -- Occurs when you take your eyes off the road.
Manual Distraction -- Occurs when you take your hands off the wheel.
Cognitive Distraction -- Occurs when you are taking your mind off of driving.

Cell phone use distracts drivers in all three of these ways, which is why it has become the primary focus in anti-distraction campaigns led by organizations like TADD and EndDD. But you should keep in mind that any activity which causes a driver to be visually, manually, or cognitively distracted is a serious danger to everyone on the road. These distractions can include applying makeup, reading a map, changing radio stations, holding a pet while driving, and even eating.

If you feel that distracted driving is an issue which requires attention, ask Stuart A. Carpey to come and speak at your school, office, or other organization. Remember: The best way to fight the spread of accidents caused by distracted driving is through increased awareness.

Was Your Doctor Mistaken? Cases of Misdiagnosis Highlight the Importance of Getting a Second Opinion

Stuart A. Carpey — Tue, 21 Feb 2012 15:31:30 -0500

On Tuesday, January 17, 2012, The Wall Street Journal’s Laura Landro reported that seeking second opinions from doctors can lead to drastic changes in diagnoses. It is not unheard of for mistakes to occur during the process of diagnosing an illness. It is possible for the reading of radiology slides and biopsies to be entirely incorrect or just false enough to leave a patient seeking the wrong treatment.

Second opinions have, for example, revealed malignant tumors to be benign; and, in some cases, what was initially thought to be asthma has later been diagnosed as chronic obstructive pulmonary disease. To say the least, seeking a second opinion can be an effective safeguard against misdiagnoses.

Misdiagnosis is one of the leading reasons for medical malpractice lawsuits as patients can waste valuable time seeking treatment they do not need, or undergoing surgery which proved to be useless to their condition. Some of the most common misdiagnoses involve:

Breast cancer
Lymphoma
Thyroid cancer
Salivary gland cancer
Chronic obstructive pulmonary disease
Alzheimer’s disease
Coronary artery

It is good to remember that doctors are human and, as a consequence, are not perfect. They can occasionally become entrenched in a diagnosis, unintentionally overlooking evidence which would either disprove their diagnosis or indicate a different diagnosis. A fresh set of eyes, as it were, can be vital to getting to the core of your ailment. Remember, you are entitled to take slides, pathology reports, and other information to another doctor for your second opinion.

Of course, we know you can’t always afford to obtain a second opinion for your diagnosis or treatment plan. Sometimes you simply have to accept what your medical professional has told you. This why it is important that your primary care physician is someone whom you trust and respect.

If you decide to seek a second opinion for your diagnosis, here are some questions to ask so you can get the most out of your second opinion:

“Are the test results contestable? Could a second round of testing prove useful?”
“Are you positive that this is the disease I have? Is it possible that there are other explanations for my symptoms?”
“Do you agree with the original diagnosis? If so, are you able to suggest any alterations or modifications to my treatment plan?”
“Have we explored all possible options?”

When it comes to your health you should try to be as informed as possible. The more you know about yourself and your condition, the more you can help your doctors treat you. Read “Top 5 Common Misdiagnoses” and “Most Common Types of Medical Malpractice,” and other articles located in our Medical Malpractice Law Articles section of our website.

How Long Should I Continue To See My Doctor After An Accident?

Stuart A. Carpey — Mon, 13 Feb 2012 15:03:13 -0500

How long should I continue to see my doctor after an accident?

As long as you, the victim, are having on-going complaints related to the accident, you should be informing your doctor about those complaints.

At the very least, your doctor is going to be making a record in his or her chart about your complaints, and you can present that list of complaints to the opposing insurance company. When the case goes to a juried trial, the jury will hear how long you went to see your doctor and what the complaints were over a period of time.

It is crucial that, as long as you have complaints related to the injuries of your accident, you continue to receive medical care.

Who Pays My Bills In A Personal Injury Case?

Stuart A. Carpey — Mon, 30 Jan 2012 10:57:17 -0500

Who pays my bills in a personal injury case?

In a typical motor vehicle accident case, your own insurance company pays your medical bills. In a fall down accident, for instance, your health insurance coverage pays your medical bills. Clients frequently assume that the other person’s insurance company is responsible for paying all of their medical bills but that is not correct under the law in Pennsylvania. Rather, the other person’s insurance company is responsible for paying for your pain and suffering. That’s typically the larger portion of the case.

Hip Replacement Class Action Suits And How Medicare And Health Insurers Will Be Getting All The Money

Stuart A. Carpey — Tue, 17 Jan 2012 12:35:26 -0500

As reported recently in the International Herald Tribune (12/29/11) and in the New York Times (8/22/11) in excess of 5,000 lawsuits have been filed against medical product manufacturers who produced and sold faulty hip replacements, leaving many patients crippled and facing further surgery. In fact, the DePuy Orthopedics division of Johnson & Johnson voluntarily issued a recall of it's artificial hips in August 2010.

The most widespread medical implant failure in the United States in decades, involving thousands of all-metal artificial hips that need to be replaced prematurely, has entered the money phase. Medical and legal experts estimate the hip failures may cost taxpayers, insurers, employers and others billions of dollars in coming years, contributing to the soaring cost of health care. The financial fallout is expected to be unusually large and complex because the episode involves a class of products, not a single device or just one company. The case of Thomas Dougherty represents one particularly costly example. He spent five months this year without a left hip, largely stuck on a recliner watching his medical bills soar. In August, Mr. Dougherty underwent an operation to replace a failed artificial hip, but his pelvis fractured soon afterward. The replacement hip was abandoned and then a serious infection set in. Some of the bills: $400,776 in charges related to hospitalizations, and $28,081 in doctors' bills....The so-called metal-on-metal hips like Mr. Dougherty's, ones in which a device's ball and joint are made of metal, are failing at high rates within a few years instead of lasting 15 years or more, as artificial joints normally do.The wear of metal parts against each other is generating debris that is damaging tissue and, in some cases, crippling patients.

But who is going to be the financial beneficiary of these lawsuits? Medicare and private health insurers who paid for the initial surgeries and who will pay for additional surgeries and other medical care to the victims of the faulty implants.

Again, from the International Herald Tribune article:

Insurers are alerting patients that they plan to recover their expenses from any settlement money that patients receive. Medicare, the government health program for the elderly, is also expected to try to recover its costs....To recoup their expenses, insurers typically notify patients through lawyers that they expect to be reimbursed from any settlement money that patients receive, rather than pursue their own lawsuits with the device makers. Also, Medicare is expected to enforce new laws next year that will make it easier for the agency to recover taxpayer dollars spent treating patients injured by problem drugs and medical devices.

How can this be? How is it that public and private health insurers are first in line to be paid from personal injury and product liability suits from these cases? Shouldn't the injured victim, the patient, be the one to recoup his or her financial and physical losses? The patient, who has gone through the agony of hip replacement surgery, now facing more surgery, is the one who has suffered. Why should an insurance company get a free ride on the back of the injured patient's lawsuit?

It's called subrogation. And although none of my clients are ever willing to accept the concept when first explained to them (and with good reason because it is they who paid for the private health insurance coverage!), subrogation is nevertheless a legal and equitable right of an insurer to be compensated (read: paid back!) for any monies paid on behalf of their insured due to the negligence of someone else. The insurer, be it Blue Cross or Medicare or Medicaid (Department of Public Welfare in Pennsylvania), is, in fact, the first to be paid back before anyone, gets a dime for their pain and suffering. This is true for the attorney that handle personal injury claims. We are not permitted to be paid for the work to generate a settlement or verdict for our clients until the subrogation lien is properly dealt with and paid. (Forget the fact that the personal injury attorney handling cases where a subragtion lien is involved is essentially an unpaid collection agent for the insurance carrier, but that is an essay for another day).

I have written about subrogation may times before. I want ( and need!) my clients, prospective clients, and the public generally to be familiar with the concept, because I don't want them to be surprised at the end of their case. In the eyes of the law, the insurance carrier who pays health benefits to an accident victim is a victim as well, and but for the wrongdoing of the tortfeasor would not have had to pay any benefits.

As to subrogation in the hip cases ''all these payers want to be paid back,'' says Matt Garretson, the founding partner of the Garretson Resolution Group, a firm in Cincinnati that manages subrogation issues for attorneys in all sorts of cases, including mass tort cases. And the payors will be paid back, because there are stiff penalties, both civil and criminal, to those who fail to pay attention to a subrogation lien in the personal injury case.

What is the Process of a Personal Injury Case?

Stuart A. Carpey — Fri, 13 Jan 2012 14:12:58 -0500

What is the process of a personal injury case?

The process of a personal injury case is always the same, no matter what type of case it is (medical malpractice case, civil rights case, car accident case, fall down case).

Once you provide us information about what happened to you, what medical injuries you've sustained, and the sort of treatment you are receiving, we obtain all medical records and do our investigation. In a car accident case, for instance, we go to the scene of the accident, take photographs, speak to witnesses, and so on.

Once the investigation stage is done, we send all the itemization to the opposing insurance company, and the settlement negotiations are started. If the parties cannot reach a settlement, we file suit.

Once the lawsuit is filed, the court sets certain time tables, telling us by what date we must complete our discovery (depositions, interrogatories, and so on). After that, the court will set the trial date.

Before the trial date, the parties usually go through a pre-trial settlement conference. You may or may not be involved in the pre-trial settlement conference, but you will always be informed of what happens at the conference. If the parties cannot reach an agreement there, the trial date will be set and the parties will go to trial, at which point you will be fully engaged in the trial process.

Is Geno's Steaks Liable For The Beating Of The Rangers Fan?

Stuart A. Carpey — Tue, 10 Jan 2012 10:10:44 -0500

Most of us have heard about the beating suffered by Neal Auricchio, Jr. outside of Geno's Steaks in Philadelphia on January 5, 2012. These are the facts as reported in the Philadelphia Inquirer by staff writer Mike Newall on January 6, 2012.

Auricchio is the New York Rangers fan who was sucker-punched and beaten unconscious by three Flyers fans after the Winter Classic hockey game Monday night at Citizens Bank Park. The video of the beating went viral.

Auricchio and a friend were enjoying postgame cheesesteaks at Geno's in South Philadelphia when the unidentified Flyers fans bribed a squeegee guy to squirt the Rangers fans with his spray bottle, said Capt. Laurence Nodiff, commander of South Detectives.The guy goes up and does it, and then runs away," Nodiff said.

That's where the video picks up.

Wearing a No. 24 Ryan Callahan Rangers jersey, Auricchio stands surrounded by Flyers fans. He puts his hands out, as if trying to play peacemaker.A man who looks to have about a one-foot height advantage on Auricchio removes his dark coat with white fur trim, uncovering his No. 28 Claude Giroux Flyers jersey.He shoves Auricchio, who still has his hands out, and then throws a punch.Auricchio throws back, punching up, but is quickly overwhelmed when a man in a No. 68 Jaromir Jagr jersey begins punching him, too. The two hit Auricchio about a dozen times as he lies on the ground.When a Flyers fan tries to pull them off Auricchio, the man with No. 28 and two other men begin to beat another Rangers fan.When Auricchio stumbles to that man's aid, No. 28 blindsides him with a punch, knocking him to the ground unconscious.Some people yell, "Enough! Enough!" and, "Easy!" Someone else yells, "Go to sleep!" No. 68 then kicks Auricchio. No. 28 steps over him and picks up his fur-trimmed coat.

Auricchio was treated at a New Jersey hospital for a concussion, said Woodbridge Mayor John McCormac, a longtime family friend. Auricchio has a stitched-up cut under one eye, and the other eye is still swollen nearly shut.

Auricchio is married and welcomed his first child, Vincenzo, the week before Christmas. He was shot by a sniper in Fallujah during his first tour in Iraq. He went back in 2007, the day after graduating from the Woodbridge Police Academy.

Questions certainly come to mind about what the heck Mr. Auricchio was doing wearing a Rangers jersey in that setting, and his lack of awareness for his personal safety in general in which he ultimately found himself. I found it surprising that Auricchio, a combat veteran and a police officer, was caught, surrounded as he was, by the violent animals that beat him. I by no means am suggesting that Mr. Auricchio's lack of awareness justified what happened to him. Rather I found it surprising that he was so unaware of the potential dangers he was facing, given his background. By the time he ordered his steak sandwich, he was "trapped" and it was already too late.

There's a book I read sometime ago, The Gift Of Fear by Davin De Becker. The premise of the book is that the threat of violence surrounds us every day. But if we trust our instincts, our sixth sense if you will, we can identify the subtle signs of danger—before it's too late. Simply put, most violent acts are predictable.

That aside, is Geno's responsible? They sure are, as a matter of law, and I believe they can be sued for money damages by Mr. Auricchio. A property owner is responsible for the criminal acts of third parties if they should have anticipated a danger to their customers. Owners of commercial property may be held liable under civil negligence claims for harm to persons by criminal acts of third parties so long as the criminal act was forseeable against “reasonably foreseeable” crimes.Section 344 of the Restatement (Second) of Torts reads:

A possessor of land who holds it open to the public for entry for
his business purposes is subject to liability to members of the
public while they are upon the land for such a purpose, for
physical harm caused by the accidental, negligent, or intentionally
harmful acts of third persons or animals, and by the failure of the
possessor to exercise reasonable care to
(a) discover that such acts are being done or are likely to be
done, or
(b) give a warning adequate to enable the visitors to avoid the
harm, or otherwise to protect them against it.
Comment (f): Duty to police premises. Since the possessor is
not an insurer of the visitor's safety, he is ordinarily under no duty
to exercise any care until he knows or has reason to know that
the acts of the third person are occurring, or are about to occur.
He may, however, know or have reason to know, from past
experience, that there is a likelihood of conduct on the part of
third persons in general which is likely to endanger the safety of
the visitor, even though he has no reason to expect it on the part
of any particular individual. If the place or character of his
business, or his past experience, is such that he should
reasonably anticipate careless or criminal conduct on the part of
third persons, either generally or at some particular time, he may
be under a duty to take precautions against it, and to provide a
reasonably sufficient number of servants to afford a reasonable
protection.

The Pennsylvania courts have held that a property owner should have knowledge of recent criminal activity and incidents at or in the vicinity of the property. This knowledge can create a duty on the part of the owner to ensure adequate security measures are in place.

If the owner of Geno's knew or should have known that a potentially violent individuals had ever frequented his business, he was as a matter of law on notice that violence could occur to his customers by other persons, be they patrons of Geno's or not. Even if no prior violent acts were known to the Geno's Steaks folks, if they saw what was developing to and around Mr. Auricchio, and did nothing, like calling the police rapidly, I believe that can be found negligent for the injuries sustained by Auricchio. Geno's Steaks should have:

anticipated the violence to it's customer, Mr. Auricchio,
acted promptly to protect its customer,
had a mechanism in place to deescalate violent situations occurring on their property, or originating from their property, between customers or others utilizing their property for any purpose.

I find it hard to believe that events similar to this have never before taken place at or near Geno's Steaks; perhaps not to this degree- yet post sporting event/post late night partying tussles between purchasers of cheesesteaks? Absolutely. That puts Geno's Steaks on notice of the violence that befell Mr. Auricchio.

"Individualized" Per-mile Coverage--Did You Know You Could Be Paying Less For Car Insurance? Is It Worth The Risks?

Stuart A. Carpey — Mon, 09 Jan 2012 12:33:42 -0500

By now, you may have heard about those pay-as-you-drive insurance policies which have been growing in popularity. If you don’t know about pay-as-you-drive, or per-mile programs, they are individualized insurance policies geared toward people who don’t drive as much as the average driver. Simply put: if you drive less, you pay less. Depending on a driver’s habits, and the policy purchased, a driver could stand to save $150 a year. The program seems great for people who believe their insurance costs do not reflect the time and miles they spend driving.

In recent years, more and more insurance companies are implementing their own versions of per-mile insurance programs. If you purchase your insurance from one of the big name providers, you might be eligible for this policy. Progressive, for example, offers a “Snapshot” program which the company says can lower a driver’s rates by up to 30 percent. Allstate and State Farm offer similar programs called, respectively, “Drive Wise” and “drive Safe and Save.”

How it works and why it is worrisome:

Though some policies allow for self-reports, meaning a driver submits his or her own miles, the majority of per-mile policies require use of a telematics device which monitors and catalogues driving information, including miles driven. The device, which is used in Progressive and Allstate programs, will also store information regarding a driver’s behavior, such as braking and accelerating patterns, and speeding. Insurance policies may also require a trial period of telematics use before offering a driver the per-mile policy.

As I have blogged about before, the use of telematics devices carries with it the fact of having Big Brother (your insurance carrier) peering over your shoulder as you drive. In theory, usage-based insurance programs seem great, but the data collected by the telematics device could hurt you more than help you. If you hit your brakes often, drive over the speed limit, or go driving after midnight when there is a greater risk of accidents, you might find that you are paying more than you thought you would. And if your insurer decides your driving habits are problematic they could slap you with a sizable surcharge. With this in mind, to call these programs “individualized” seems appropriate since it rests on individuals to decide if the invasion of privacy is worth the potential savings.

While usage-based insurance policies may benefit some drivers, all drivers should know that these policies do not eliminate the need for full tort insurance coverage, including plenty of uninsured motorist coverage and underinsured motorist coverage. For more information on these important coverages order my book Purchasing Auto Insurance in Pennsylvania for useful information on getting the most out of your car insurance.

If you are interested in usage-based programs, you should talk to your insurance carrier or agent to see if you qualify. But make sure you read the fine print; be fully aware of what you are getting into.

This Holiday Season, Keep Kids Alive: Drive 25

Stuart A. Carpey — Tue, 27 Dec 2011 15:04:31 -0500

The following is a guest blog post by Tom Everson. Tom's organization Keep Kids Alive Drive 25 is dedicated to keeping our country's streets safe for children.

Drive to Keep Everyone Alive!

What is one gift we can give everyone while on the road during the holidays? The gift of safe driving behaviors. All we have to do to keep everyone alive is:

• Hang up and drive
• Don't drink and drive
• Buckle up everyone every trip - no matter the distance
• Observe speed limits, and slow down according to weather/road conditions
• Remember, it's not a race, so create space - give yourself time to react to what goes on around you.
• Observe traffic signals and signs. Stop! Take 3 to See at stop signs.

Have a safe holiday season.

Keep Kids Alive Drive 25®
www.KeepKidsAliveDrive25.org

National Transportation Safety Board Member Calls Texting While Driving the "New DUI"

Stuart A. Carpey — Tue, 20 Dec 2011 12:30:35 -0500

With a steady rise in cell phone related car accidents, distracted driving is becoming more and more of a hot button issue among legislators and drivers alike. On Tuesday December 13, 2011, the National Transportation Safety Board (NTSB) urged states to put forth efforts to ban all cell phone use among motor vehicle drivers.

We recently reported on NTSB’s push for cell phone bans among commercial truck drivers following a devastating trucking accident which claimed the lives of 11 people in Munford, Kentucky. But an August 5, 2010 four-vehicle crash which resulted in two deaths and 38 injuries has motivated the board to urge a ban on all non-emergency cell phone use for all drivers.

Although the NTSB does not have the authority to legislate, the board’s unanimous recommendation promises to spark much debate on the issue of distracted driving. Members of the NTSB are calling for a ban not only on the use of hand-held cell phones but on hands-free devices as well. NTSB member Robert Sumwalt is being widely quoted, by CNN for example, after referring to distracted driving as “the new DUI.”

The National Highway Traffic Safety Administration reports that the year 2010 saw 3,092 traffic fatalities due to distracted driving. Cell phone use—particularly texting while driving—is becoming an epidemic in America, one which requires immediate attention.

The problem: While more and more states are implementing bans on cell phone use in motor vehicles, the Insurance Institute for Highway Safety makes the claim that these bans result in little to no change in traffic crashes. Whether banned or not, many people will continue to use their cell phones while they drive. In response to this issue, many car manufacturers are developing new technologies which promise to make in-car communication safer and more productive.

The video below, provided by CNN, features Ford researcher Jim Buczkowski discussing the voice-activated Sync system. The goal for Sync and similar systems is to enable drivers to make phone calls while keeping their hands on the wheel and their eyes on the road. Take a look:

In addition to hands-free capabilities, CNN’s Peter Valdes-Dapena reports that these technologies include "systems that alert drivers to stopped or slow-moving cars or pedestrians ahead of them" and "systems that warn when a vehicle is drifting out of its lane.” And even though this technology remains a work-in-progress, we can hope that these systems will help to reduce the number of car accidents caused by distracted driving.

For more information on texting while driving, and for suggestions on how to remedy the problem, please see the article “How to Prevent Your Kids from Texting While Driving,” which can be found on the Kreithen, Baron & Carpey website.

Potholes On The Road Which Lead To Injury: Can I Sue The City?

Stuart A. Carpey — Wed, 14 Dec 2011 14:45:19 -0500

Drivers throughout Pennsylvania can now report potholes to local agencies (ie: Penndot, Streets Department of the City of Philadelphia) by utilizing apps on their smartphones which send current locations of potholes via GPS. As reported in the Philadelphia Inquirer article by Reid Kanaley (12/1/11):

Your smartphone must have GPS function for the app to work. When you load it for the first time, the app asks for your e-mail address. After that, if you spot a pothole, just open the app and tap the screen twice to generate a pothole report.After your double tap, you'll be instructed to check your e-mail for a message from SaveMyTire.com. The "pothole report" message will ask you to preview a map showing your pothole location, and then to either tap a link to confirm your report or, if the map is not correct, tap a different link to cancel your report and start over.Confirmed reports go into the SaveMyTire.com database and are e-mailed to the local city, county, or state road department.

This could also prove helpful in establishing notice to municipalities and the Commonwealth of Pennsylvania of potholes that cause injury to drivers and passengers who hit them. These types of accidents are usually very difficult to prove despite the fact that hitting a pothole at high speeds while not expecting it can result in serious injuries to the driver and occupant of any car, bus or motorcycle. The laws in Pennsylvania generally require prior written notice of a roadway defect before a successful suit for damages can be brought.

If you feel that they have been wronged by the government because the car you were in hit a pothole, you may be able to seek redress in the courts. However, you should be aware that recovering damages against the government is even more difficult than recovering against a non governmental party. Notice of the pothole by the government if always of particular concern. These new apps will place an interesting twist on the issue of whether a governmental agency was made aware of the pothole and whether anything was done in a reasonable time period to try and fill the pothole or otherwise warn drivers of the danger. Trial lawyers representing victims who sustained injuries when in a vehicle that hit a pothole will now be able to retrieve data sent to SaveMyTire.com and other sites that will prove useful as evidence at trial and at the pretrial stage.

The American Association for Justice (AAJ) Takes on Corporate America's "Lawsuit-Happy Hypocrites"

Stuart A. Carpey — Mon, 12 Dec 2011 16:23:53 -0500

The American Association for Justice (AAJ) recently published Do As I Say, Not As I Sue, a white paper which reports on the duplicitous nature of the Institute for Legal Reform and the corporations which finance the advocacy group. The report focuses on corporate America’s big push to limit the ability of individuals to get to the courthouse steps while simultaneously making use of the courthouse to further its own agendas.

In 1998, the Institute for Legal Reform was founded by the United States Chamber of Commerce, a largely conservative group made up mostly of lobbyists and lawyers. The AAJ report indicates ten major American corporations that currently hold seats in the Institute of Legal Reform, and outlines how each corporation has misused the litigious power at its disposal.

For example: State Farm

Board member of the Institute for Legal Reform since 2003, State Farm has a history of attacking individuals in a court of law even after their suits have been proved fallacious. The AAJ reports that the insurance company mistakenly filed a lawsuit against an S. Calderon, whom they believed caused a three-car accident in Fresno, California. The company pursued the lawsuit long after it was recognized by the California Department of Motor Vehicles that S. Calderon was not at fault, nor was she even involved in the accident. In the end, Calderon had to spend thousands of dollars in legal fees just to fight a false accusation.

Furthermore, the AAJ report submits that State Farm “has gone to extreme lengths to avoid paying claims, including forging signatures on earthquake waivers after the deadly Northridge earthquake, and altering engineering reports regarding damage after Hurricane Katrina.” Having members on the board for the Institute for Legal Reform makes it much easier for State Farm to weather these kinds of scandals.

But State Farm is just one of ten corporations listed in the AAJ’s report. The report demonstrates that US corporations and insurance companies will go out of their way to push on the public and the press the need for “tort reform” when really what is needed is “corporate reform.” Talk about frivolous lawsuits! Just read AAJ’s white paper and you will get a clear picture of what corporate America is filing lawsuits for and how they are simultaneously closing the courtroom steps to the the average Joe through their successful political lobbying efforts.

The Trial of Dr. Conrad Murray--A Lesson in Recklessness and Negligence

Stuart A. Carpey — Mon, 28 Nov 2011 16:19:52 -0500

On November 7, 2011, cardiologist Conrad Murray was found guilty of involuntary manslaughter of pop superstar Michael Jackson, who died of cardiac arrest on June 25, 2009. The trial, which lasted six weeks, ended with the jury’s decision that Dr. Murray’s conduct was reckless enough to be viewed as criminally negligent under California’s penal laws. His conviction was for involuntary manslaughter, which at least under California law, is defined as criminal negligence. The prescribing and unorthodox administering of the powerful anesthetic propofol was the major factor in proving Dr. Murray’s guilt.

California Penal Code 192(b) recognizes involuntary manslaughter as “the commission of an unlawful act, not amounting to felony; or… the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” The prosecutors in this case had to prove that even though the doctor did not intend to kill Jackson with propofol, Murray’s utter disregard for his patient amounted to recklessness.

In a civil case, negligence is a common law tort in which a person is injured due to another person’s carelessness. Criminal negligence as it is defined by California law, occurs when a person (such as a doctor) acts in blatant disregard of the harm which might befall another person (such as a patient), ie: recklessness.

If Jackson’ family decides to sue the doctor in negligence, they would be able to use the evidence already presented in the criminal case. If and when Jackson’s estate brings a negligence case, here is what must be proven:

Duty: In a civil negligence case, it is necessary to prove that the defendant (Conrad Murray) owed a duty to the plaintiff (the late Michael Jackson). Due to the doctor-patient nature of their relationship, it is undeniable that Dr. Murray owed a duty to Jackson and that that duty required Murray to act in a manner befitting his profession.

Breach of Duty/Breach of Standard of Care: After establishing that Dr. Murray owed a duty to his patient, it is then necessary to prove that he breached that duty. Prosecutors had presented a list of ways in which the defendant failed to fulfill his duty to the plaintiff. Prescribing 4 gallons of propofol, and allowing the drug to be administered within Jackson’s home was an unorthodox practice which has been recognized as the doctor’s major breach of duty, and outside of the standard of care: ie what a reasonable doctor would have done under the circumstances.

Causation: After proving breach of duty, prosecutors must argue that the defendant’s negligence directly caused harm to the plaintiff. Combined with other drugs, the propofol prescribed to Jackson caused the singer to go into cardiac arrest. In the criminal case, prosecutors argued that Dr. Murray failed to perform all of the necessary steps of cardiopulmonary resuscitation (CPR); specifically, he performed CPR on Jackson’s bed rather than on a flat surface. These details further prove breach of duty, as well as served to implicate Dr. Murray in causing Jackson’s death.

Damages: Damages in a negligence case amount to the injury or other measurable loss inflicted upon the plaintiff. The damages here were, obviously, the singer’s death. But also, there is an element of pain and suffering which is called survival damages, and Jackson’s loss of earnings over his expected lifetime, which falls under the category of wrongful death damages.

Duty, standard of care/breach, causation and damages are the elements which need to be proven by any plaintiff/estate in a death case, whether in Pennsylvania or in California.

Dr. Murray is due to be sentenced on November 29th, 2011. He could serve up to 4 years in prison for involuntary manslaughter.

You Can't Multitask, So Just Stop Driving!

Stuart A. Carpey — Fri, 25 Nov 2011 14:28:51 -0500

Why can't that driver next to me stop texting while driving?

According to a recent University of Kansas research study, texting is like any addiction. The study was done by Paul Atchley, Ph.D. , an associate professor of Cognitive Psychology at the University of Kansas. Texting is a social behavior, and that desire to stay connected is extremely powerful because it taps directly into your brain's reward system. You want that next hit, and that "bing" on your smartphone provides that next hit of social acceptance.

As of the present date, 34 states have banned texting while driving. But legislating the issue does not necessarily solve the problem. Therefore, as a motorist, it's a good idea to learn to protect yourself on the highway. Other multicasting motorists give signals. Texting or otherwise distracted drivers generally:

drive more slowly compared to other drivers
tend to drift in and out of their lanes.
tend to miss off ramps and on ramps until the last minute.

Luzerne County Court Fills Vacant Judgeship Seats

Stuart A. Carpey — Thu, 17 Nov 2011 13:37:24 -0500

After a series of scandals from 2008-2009 which left Luzerne County Court of Common Pleas with vacancies in six out of ten judges’ seats, 2012 will finally see the court again fully-staffed. On November 9, 2011, Timesleader.com’s Sheena Delazio reported that six new judges won election in the county.

Jennifer Rogers, a civil litigator who first ran in 2009, received the most votes with 41,706, trailed by Fred Pierantoni with 39,881. The other winners are Joseph Sklarosky Jr., Michael Vough, Dick Hughes, and Lesa Gelb.

The new judges will be occupying seats left by former judges Ann Lokuta, Mark Ciavarella, Jr., Michael Conahan, Michael Toole, and Peter Paul Olszewski.

As I have written about before, Ciavarella and Conahan were removed from the bench in relation to the “Cash For Kids” scandal. Ciavarella chose to go to trial and was found gulity. Conahan pled guilty.

The new and fully staffed 2012 court promises to begin a new era for Luzerne County. The new judges have released statements expressing how “humbled” and “honored” they feel to be elected. County judges serve 10-year terms.

For more information on Luzerne County’s new judges, see the Times Leader’s article.