Brien Roche Law http://www.brienrochelaw.com Mon, 17 Nov 2014 01:24:45 +0000 en-US hourly 1 Eyewitness Identification http://www.brienrochelaw.com/blog/eyewitness-identification/ http://www.brienrochelaw.com/blog/eyewitness-identification/#comments Thu, 06 Nov 2014 18:00:20 +0000 http://www.brienrochelaw.com/?p=9332 Eyewitness Identification from Brien Roche Law

Eyewitness identification is a critical feature of our legal system.  Most people would agree that eyewitness identification however stands on fragile legs. Eyewitness identification is frequently influenced by such things as the race of a suspect, bad lighting, aggressive police … Continue reading

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Eyewitness Identification from Brien Roche Law

Eyewitness identification is a critical feature of our legal system.  Most people would agree that eyewitness identification however stands on fragile legs. Eyewitness identification is frequently influenced by such things as the race of a suspect, bad lighting, aggressive police interrogations and the overall trauma of the event.

Many people believe that human memory is like a tape recorder.  It is not.  The memory is frequently very brittle and easily influenced.

Eyewitness Identification-DNA Testing

DNA testing over the years has shown the perpetual errors in eyewitness identification.  As a result, police and prosecutors are forced to look at the research on human memory.

There are several steps that have been recommended in order to reduce the potential error rate in eyewitness identification.  Some of those consist of adopting written guidelines for identification, presenting unbiased lineups, taking steps to measure witness confidence early in the process.

As of 2014, 1,432 wrongfully-convicted prisoners have been exonerated according to the National Registry of Exonerations.  This organization has tracked these releases since 1989.  Thirty-five (35%) of those people were imprisoned due to mistaken identification.

In 2013 91 exonerations were reported.  There have been 17 individuals exonerated in the District of Columbia between 1989 and July of 2014.  There have been 21 in Maryland.  There have been 40 in Virginia.  Factors contributing to these exonerations from these jurisdictions were false or misleading evidence, perjury and mistaken identification.

Most of these eyewitness identification errors occurred in sexual assault cases.

The brain has a bias toward negative events.  Our memory does also.  What that means is that memory tends to focus more on unpleasant experiences as a way to adapt in the future.  In addition when people are traumatized, their brains literally stop operating in normal fashion.  The brain is in effect taking snapshots of what is happening.  Those snapshots tend to be of the most emotional scenes.  That way the brain knows how to deal with those events if they recur.  In addition, every time someone remembers that event from the past, the brain reconstructs that image.  It is not always reconstructed with the exact same details.  What that means is that the brain does not reconstruct the event in a sequential way but rather based upon the snapshots.

Over the years there has been a lot of controversy about repressed and recovered memory.  Most professionals agree that approach has been debunked.  The idea that you forget being molested and then suddenly remember it because you went through some kind of therapy has been largely discredited within the field of psychology.  Some states still allow recovered memories to be used as evidence in legal proceedings.

Eyewitness Identification-Recommended Changes

Fifteen years ago the National Institute of Justice published “Eyewitness Identification:  A Guide for Law Enforcement”.  This publication contains several recommendations.  Those recommendations included having standardized instructions for witnesses; having a single suspect per lineup; using a minimum of five so-called fillers or stand-ins in a lineup; recording witness statements; preparing lineup reports; standardizing the photographs of photo lineup members.  Some things that this guide did not fully address were the use of double-blind lineups and sequential lineups.  A double-blind lineup is one where the investigating officer is unaware of which individual in the lineup is the suspect.  A sequential lineup is where witnesses are shown, physically or through a photo array, suspects one at a time rather than a simultaneous lineup where they are all introduced at the same time.

At this point most law enforcement agencies have no written policies for eyewitness procedures.  As a result, there are frequent instances where a well-intended police officer influences the identification process, perhaps innocently.  This occurs as a result of the use of leading questions, the general attitude of the officer as to the culpability of the suspect and simply body language.

In October 2014 the National Research Council of the National Academy of Sciences, a non-profit organization, published its research on the subject.  The panel determined that action was necessary to offset concerns about the validity of eyewitness identification.  The study went on to recommend several things.  In particular they recommended the development and use of standardized witness instructions, the documenting of witness confidence level, videotaping of identification procedures, adopting double-blind lineups and photo array procedures and training officers in proper identification techniques.  The report also encouraged the court to adopt new rules governing eyewitness identification including conducting pre-trial inquiries, alerting juries to prior identifications, allowing scientific experts to testify on eyewitness reliability and encouraging judges to use instructions to convey information about key factors relating to eyewitness identification.

The report indicated that additional research is needed on the use of simultaneous and sequential lineups.

The U.S. Supreme Court in Perry v. New Hampshire in 2012 addressed the issue of eyewitness identification and stated that the responsibility is on state officials as to whether or not they should change their laws on these issues.  New Jersey and Oregon had been in the forefront of such changes.  In New Jersey, when a defendant presents evidence of a suspicious identification, then the court must hold a hearing to consider the challenge.  Disputed evidence is admitted but the judge is required to explain to jurors the factors that could increase the chance of misidentification.

In Virginia a 2005 law requiring jurisdictions to adopt an eyewitness identification policy has in large measure been ignored by law enforcement.

At this point it is conceded by many that human memory is much like evidence.  It can be contaminated.  Contamination can come in the form of leading questions.  It can come in the form of tainted identification procedures.  It can come in the form of nonverbal cues sent by the investigating officer to the victim/witness.  Any of these can undermine the reliability of the eyewitness identification.

For more information on eyewitness identification and other matters that may be related to injury claims, see the other pages on this site.

for more personal injury news and views visit, Brien Roche Law

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Auto Insurance http://www.brienrochelaw.com/blog/auto-insurance/ http://www.brienrochelaw.com/blog/auto-insurance/#comments Thu, 30 Oct 2014 17:09:21 +0000 http://www.brienrochelaw.com/?p=9329 Auto Insurance from Brien Roche Law

You would think that the topic of auto insurance is a simple one.  Years ago some insurance carriers began writing auto insurance policies in what they call plain English.  Plain English to an insurance carrier is typically not plain English … Continue reading

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Auto Insurance from Brien Roche Law

You would think that the topic of auto insurance is a simple one.  Years ago some insurance carriers began writing auto insurance policies in what they call plain English.  Plain English to an insurance carrier is typically not plain English to the ordinary American.  As simple as insurance companies may have tried to make auto insurance language, the fact is they are complicated documents.  They become especially complicated where you have coverage being provided apparently in one part of the policy only to be excluded or exempted in some other part of the policy.

Basic forms of auto insurance coverage are liability, comprehensive, collision, uninsured motorist and medical payments.

Auto Insurance-Liability

Liability coverage protects you in the event that someone else alleges that you were at fault for an automobile accident.  By you, I mean either you as the insured or anyone who is driving your vehicle with your permission.  Under state statutes anyone who is a “permissive user” of the vehicle is covered by the liability policy.  Liability coverage is the only form of coverage in Virginia that comes close to being mandatory.  In reality however it is not mandatory because you can choose to pay an uninsured motorist fee in which event you may go without liability coverage.  The minimum coverage allowed in Virginia for liability is $25,000.00.

That $25,000.00 means that the insurance carrier will pay up to $25,000.00 in the event that you were found to be liable for the collision.  The insurance carrier will also provide an attorney to defend you.  The attorney is one that they chose- not you.

Auto Insurance-Uninsured Motorist

Uninsured motorist coverage or what can also be called underinsured motorist coverage applies in those instances where the at-fault motorist has minimum limits or low limits.  For instance if the other driver who is at fault only has $50,000.00 in coverage and you have a $200,000.00 claim, then your underinsured motorist coverage may apply in order to pick up the difference between that $50,000.00 and your $200,000.00 claim.

This latter form of coverage applies whether you are in an insured vehicle or not.  For instance if you are a pedestrian then conceivably your uninsured motorist coverage could apply.  Imagine that you are struck while crossing the street in a crosswalk.  The striking vehicle only has $25,000.00 of coverage.  Your $300,000.00 auto insurance policy may apply in that instance.  In this event the available coverage is $300,000.00 i.e., $25,000.00 from the at-fault motorist and $275,000.00 from your policy.

Issues of coverage under uninsured motorist endorsements of insurance policies can be rather complex.

Auto Insurance-Collision

Collision coverage is coverage that applies where your vehicle has been damaged.  It makes no difference who is at fault.  If you have that coverage your insurance carrier will repair your vehicle.  Typically if the repair cost is more than 70% of the value of the vehicle, then the insurance carrier will “total” the vehicle.  Under that circumstance they are only obliged to pay you the fair market value of the vehicle.  Fair market value may be determined by looking at such sites as Kelley Blue Book and Edmunds.com.  The insurance companies use their own book upon which they base fair market value of vehicles.  This can sometimes create an unhappy circumstance.  Suppose you have a lien against the vehicle for $10,000.00 and the vehicle is only worth $8,000.00.  The insurance company is only obliged to pay you that fair market value i.e., $8,000.00.  That leaves you $2,000.00 short in terms of having to pay your lender for a vehicle you no longer have.

Auto Insurance-Comprehensive

Comprehensive coverage is somewhat similar to collision in that it covers such things as fire, theft and glass breakage.  These types of coverage apply regardless of who may be at fault for the particular damages.

Auto Insurance-Medical Payments

Medical payments coverage typically comes in increments of $1,000.00, $5,000.00 and $10,000.00.  This form of coverage may stack, meaning that if you have five vehicles and your policy limits are $5,000.00 in medical payments coverage then in effect you may have a total of $25,000.00 in coverage.

This type of stacking in Virginia typically does not apply however to other forms of coverage i.e., liability coverage or uninsured motorist coverage.  However that particular issue may be policy-specific.  What that means is that you need to look at each insurance policy to determine whether or not stacking is allowed.

Medical payments coverage (frequently called Med Pay) is a very valuable form of coverage to have.  Even though your medical bills may have been submitted to your health insurance carrier and even though you are claiming your medical bills in your liability claim against the at-fault motorist, you can still submit these medical bills to your medical payments carrier and they will pay them.

Auto Insurance-Subrogation

One thing you need to be aware of in any auto collision is that if bills are submitted to your health insurance carrier then typically they have a right of subrogation.  The right of subrogation means that the health insurance carrier has a right to recover every dollar that they paid out on your behalf.  Some health insurance policies allow a reduction of this right of recovery for the attorney’s fees that you would incur.  Typically in an injury case your attorney’s fees would be 1/3 of the recovery.  In that circumstance they may reduce their subrogation claim by 1/3.  That however again is policy-specific.  That right of subrogation applies however only to employer-issued ERISA health insurance policies.  Otherwise subrogation is barred in Virginia for health insurance policies.

For more information on auto insurance and car accident related issues see the other pages on this site.

for more personal injury news and views visit, Brien Roche Law

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Ruptured Aneurysm http://www.brienrochelaw.com/blog/ruptured-aneurysm/ http://www.brienrochelaw.com/blog/ruptured-aneurysm/#comments Sun, 26 Oct 2014 18:00:27 +0000 http://www.brienrochelaw.com/?p=9325 Ruptured Aneurysm from Brien Roche Law

A ruptured aneurysm is typically a catastrophic event. An aneurysm may be in the brain or it may be in other parts of the body.  The ruptured aneurysm frequently leaves the patient barely conscious and in shock with massive internal … Continue reading

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Ruptured Aneurysm from Brien Roche Law

A ruptured aneurysm is typically a catastrophic event. An aneurysm may be in the brain or it may be in other parts of the body.  The ruptured aneurysm frequently leaves the patient barely conscious and in shock with massive internal bleeding.  Sometimes the heart may stop.

Ruptured Aneurysm: Abdominal Aorta

If the ruptured aneurysm is in the abdominal area then frequently it is found in the abdominal aorta.  That is the body’s largest artery.  What happens with an artery like that is that it slowly bulges, then balloons and then finally bursts.

Statistically only 50% of the people in this condition live to reach an operating room.  Of those, there is a 90% mortality rate.  Every minute that passes increases that mortality rate by 1%.

An aneurysm of this nature is frequently difficult to diagnose.  First an EKG needs to be done in order to determine whether or not the patient has suffered a heart attack.  If the patient reports pain in the abdominal area, that certainly is a clue.  In addition swelling of the abdominal area likewise is a clue that the patient has a ruptured aortic abdominal aneurysm.  That diagnosis is typically confirmed with an ultrasound.  At that point the patient needs to receive immediate transfusions.

Throughout this period of time CPR is being administered in order to prevent cardiac arrest.

In addition an anesthesiologist needs to be available to provide monitoring and also to oversee the infusion and transfusion equipment necessary for the surgery to begin.

The administration of anesthesia frequently causes the blood pressure to drop.  The surgeon then needs to open the abdominal area and sometimes compress the aorta in order to allow for resuscitation of the patient.  The area of the aneurysm needs to be quickly identified.  Clamps are placed on the portion of the aorta that is affected.  This allows the surgical repair of that aneurysm.  That prevents the life-threatening bleeding.  Meanwhile transfusion is keeping the patient alive with fresh blood.

The surgeon typically will replace the ruptured section of the aorta with a strong, durable artificial graft which allows blood to pass through it normally.

Post-surgically the wound is typically left open since there is going to be significant swelling from the injury and also from the surgery.  The open wound allows the swelling to occur without further complications.

Ruptured Aneurysm: Prevention

Ruptured abdominal aneurysms are preventable.  There is a 98% success when the aneurysm is detected by testing and repair through elective surgery.

People that are particularly at risk are men that are over 60, those who have had an immediate relative who had an abdominal aortic aneurysm, people with high blood pressure, smokers.

The best cure of course is prevention.  Medicare covers a one-time screening for these types of aneurysm.  If an aneurysm is detected that appears to be dangerous then elective surgery can be scheduled and the aneurysm can be prepared.

For more information on medical malpractice and related topics see the other pages on this site.

for more personal injury news and views visit, Brien Roche Law

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What Kind of Compensation is Available for a Spinal Cord Injury Claim? http://www.brienrochelaw.com/blog/spinal-cord-injury-claim/ http://www.brienrochelaw.com/blog/spinal-cord-injury-claim/#comments Sat, 25 Oct 2014 18:00:07 +0000 http://www.brienrochelaw.com/?p=9323 What Kind of Compensation is Available for a Spinal Cord Injury Claim? from Brien Roche Law

A spinal cord injury is a serious and life-altering experience that can impact the lives of victims both temporarily or permanently.  Because of the integral relationship between the spinal cord and the body, spinal cord injuries can create a host … Continue reading

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What Kind of Compensation is Available for a Spinal Cord Injury Claim? from Brien Roche Law

A spinal cord injury is a serious and life-altering experience that can impact the lives of victims both temporarily or permanently.  Because of the integral relationship between the spinal cord and the body, spinal cord injuries can create a host of health problems.  Spinal cord injuries generally involve damage to the spinal cord that runs along the spine, which inhibits signals sent to or from the brain.  When these signals are inhibited, they will result in the loss of motor skills and nerve function.  Other potential health issues of spinal cord injuries include paralysis of the lower body or all four limbs.  A spinal cord injury claim can arise in a number of ways such as from car accidents, medical malpractice accidents, slip and falls or acts of violence.  In response to the detrimental nature of spinal cord injuries, the compensation for such injuries varies and will depend on the state in which you live in.  This article discusses the main types of compensation available to those pursuing a spinal cord injury claim.

Spinal Cord Injury Claim: Types of Compensation Available

Courts may order monetary awards called “damages” that compensate victims for the spinal cord injury that they suffered at the hands of another.  This compensation serves the purpose of placing the victim in their pre-injury condition by paying for any losses that victim incurred as a result of the injury.  The main types of damages ordered by courts are reimbursement for medical expense, pain and suffering, the cost of assistive devices, modifications to make the victims’ homes accessible and loss of income.

Reimbursement of Medical Expenses:   These are damages given to reimburse the victim for the treatment they already received and compensation for the estimated costs that will be incurred in the future.

Pain and Suffering:  You may be entitled to pain and suffering damages that are meant to compensate victims that are suffering from discomfort due to their spinal cord injury.

Assistive Devices:  The court may order damages for the use of assistive devices such as wheelchairs, crutches and canes that will assist the victim in carrying on in their daily lives.

Modifications for Accessibility:  These damages are given to pay for the modifications needed to make the victim’s home more accessible after the victim’s injury.

Spinal Cord Injury Claim-Seeking Legal Help

If you have a spinal cord injury claim obtain a good attorney who specializes in personal injury lawsuits.  This is the first step to obtaining the damages that you may be entitled to because of your injury.

For more information about your spinal cord injury claim and personal injury in general, see the other pages on this site.

for more personal injury news and views visit, Brien Roche Law

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Unnecessary Hip Replacement http://www.brienrochelaw.com/blog/unnecessary-hip-replacement/ http://www.brienrochelaw.com/blog/unnecessary-hip-replacement/#comments Fri, 24 Oct 2014 18:00:35 +0000 http://www.brienrochelaw.com/?p=9327 Unnecessary Hip Replacement from Brien Roche Law

Hip replacement surgery has become the bread and butter of many orthopaedic surgeons.  Many of these surgeries are simply unnecessary.  Hip pain, where there is no arthritis, typically is a clue to the fact that impending hip replacement surgery may … Continue reading

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Unnecessary Hip Replacement from Brien Roche Law

Hip replacement surgery has become the bread and butter of many orthopaedic surgeons.  Many of these surgeries are simply unnecessary.  Hip pain, where there is no arthritis, typically is a clue to the fact that impending hip replacement surgery may not be necessary. An unnecessary hip replacement is avoidable.

Unnecessary Hip Replacement-Hip Repair

The repair mechanism is surgical but it is minimally invasive.  This type of repair surgery is designed to relieve pain and also prevent hips from wearing out.

The cause of many hip symptoms is due to the fact that the ball and socket in the hip do not fit together perfectly.  This is called impingement.  It is somewhat like putting a square peg into a round hole.  The ball of the hip bone puts extra pressure on the rim of the socket which is called the labrum.  The socket is encircled with cartilage which provides cushion between the two bones.  When that cartilage breaks down as a result of the ball not properly fitting, then it produces pain.

In order to repair this condition, the surgeon makes half-inch incisions around the hip and then re-contours the ball into a round shape.  That way it fits perfectly into the hip socket.  Next the torn cartilage, that is the cushion around the socket, is repaired. Then it is secured onto the bone with stitches that anchor it there.  At that point there should now be a perfect match between the ball and the socket.

This type of surgery is typically done as outpatient surgery. The patient can go home that day.

Problems of this nature frequently are genetic.  These problems however can be a result of sports participation.  In particular sports injuries between the ages of 12 and 17 are a common cause.  During this time-frame in a person’s life the growth plates are closing and bone structures are forming.  If they form improperly during this period of time then they can cause problems later in life.

Unnecessary Hip Replacement: Expense

Although a hip replacement may have served the same purpose as this hip repair, the hip replacement is obviously much more dramatic.  It is also much more expensive.  Hip repair in a circumstance where the hip bone is simply a little too big for the socket should be the preferred course of action.

However even before this hip repair is attempted the first course of action should be a plan of injections, anti-inflammatory medications and physical therapy.  In some instances that may solve the problem.  If however it simply is an instance of where the hip bone is too big for the socket then probably some mechanism of repair surgically is going to be necessary.

Unnecessary Hip Replacement: Contact Us

For more information on unnecessary hip replacement and medical malpractice and related topics see the other pages on this site.

for more personal injury news and views visit, Brien Roche Law

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Rear End Collision : Two Questions You Should Ask http://www.brienrochelaw.com/blog/rear-end-collision/ http://www.brienrochelaw.com/blog/rear-end-collision/#comments Thu, 23 Oct 2014 14:00:46 +0000 http://www.brienrochelaw.com/?p=9322 Rear End Collision : Two Questions You Should Ask from Brien Roche Law

A rear end collision is one of the most common car accidents.  Most of us have heard that if you are rear-ended in a car accident, the tailing car is almost always at fault.  While that is true in most … Continue reading

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Rear End Collision : Two Questions You Should Ask from Brien Roche Law

A rear end collision is one of the most common car accidents.  Most of us have heard that if you are rear-ended in a car accident, the tailing car is almost always at fault.  While that is true in most instances, there are a few scenarios in which the tailing driver may only be partially liable or not liable at all.  Due to the nature of rear-end collisions, tailing drivers have a difficult time proving they are not at fault.  Luckily for forwarding or tailing drivers, there are factors that you can use to determine whether you are at fault for a rear end collision.

Rear End Collision: Are You At Fault Under The Assured Clear Distance Rule?

Most cases of rear-end collisions are open and shut, requiring little discussion about each driver’s liability.  This is due to the “Assured Clear Distance Ahead” (ACDA) rule that requires that tailing drivers keep an assured clear distance behind the vehicle.  This means the tailing driver must at all times keep a distance that allows the tailing driver to stop suddenly and safely if the vehicle in front stops suddenly.

In order for this rule to apply, both the forward and tailing drivers must be driving the speed limit and following all other traffic laws.  To give an example, let’s say that you’re driving on the highway when the car in front of you stops suddenly.  You try to brake but end up hitting the car in front of you.  If you and the driver in front of you were both driving the speed limit and you still hit that driver’s car, you have violated the ACDA rule and you are entirely at fault.  Even though this rule seems very cut and dry, there are a few scenarios where the ACDA rule may not apply.

Rear End Collision:Are There Any Scenarios Where The ACDA Would Not Apply?

A tailing driver may not always be liable for rear-ending the car in front of him.  Even when the ACDA rule applies, the forward driver may be at fault for causing the rear end collision, removing the tailing driver’s liability.  Here are the most common scenarios where the forward driver is at fault:

  • Driver’s car malfunctions i.e., a flat tire, but he does not pull over to shoulder and employ hazard lights;
  • Driver’s brake lights malfunction
  • A driver stops suddenly to make a turn

In each of these scenarios the forward driver negligently caused the rear-end collision to occur.  Given the specific facts of the accident, the tailing driver may be partially at fault or not at fault at all.  In a contributory negligence state like Virginia, any negligence on the part of the forward driver that was a direct cause of the collision will allow the tailing driver to avoid paying damages to the forward driver.

Rear End Collision:The Importance of Contacting a Personal Injury Attorney

For all automotive accidents where fault has not been determined, each driver should meet with an attorney to discuss his or her rights and the best course of action for the case.

For more information see the other pages on this site dealing with car accident claims.

for more personal injury news and views visit, Brien Roche Law

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ERISA Subrogation http://www.brienrochelaw.com/blog/erisa-subrogation/ http://www.brienrochelaw.com/blog/erisa-subrogation/#comments Sun, 12 Oct 2014 18:00:19 +0000 http://www.brienrochelaw.com/?p=9306 ERISA Subrogation from Brien Roche Law

The issue of ERISA subrogation was the subject of a recent Supreme Court decision entitled U.S. Airways, Inc. v. McCutchen. In this case the Court dealt with the ERISA statute and the concept of ERISA subrogation.  ERISA stands for Employee Retirement … Continue reading

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ERISA Subrogation from Brien Roche Law

The issue of ERISA subrogation was the subject of a recent Supreme Court decision entitled U.S. Airways, Inc. v. McCutchen.

In this case the Court dealt with the ERISA statute and the concept of ERISA subrogation.  ERISA stands for Employee Retirement Income Security Act.  That statute provides a number of different benefits for certain employer/employee-related compensation.

Erisa Subrogation: McCutchen

This particular case arose out of an automobile accident in 2007.  The U.S. Airways employee was James McCutchen.  He was injured in a serious car accident.  His employer-sponsored health plan paid his medical expenses which totaled $66,866.00.  The plan requested reimbursement.  McCutchen’s auto accident case settled for $110,000.00.  After the payment of attorney’s fees that left him with $66,000.00.

McCutchen’s defense to the claim asserted by U.S. Airways was two-fold.  The first defense was that the plan’s recovery should be limited to that portion of the settlement that was allocated to medical expenses.  The second defense was the so-called common fund doctrine.  That doctrine says that the plan’s available recovery should be reduced to cover reasonable attorney’s fees.  Typically the attorney’s fees are one-third (1/3).  That would reduce the recovery by the plan by 1/3.

The Supreme Court rejected the first argument, saying that the express terms of the plan allowed recovery against the entire settlement amount.  The Court accepted the second argument on the theory that the plan did not address the allocation of attorney’s fees.  The Court held that the common fund doctrine applied in the absence of an express agreement.

The Supreme Court said that if a plan does not wish to bear the attorney’s fees, there is a way to avoid that.  They need to specifically state what if anything it will pay towards the cost of recovery.

Erisa Subrogation: Factors To Consider

In looking at ERISA subrogation issues, there are several factors that need to be kept in mind:

  • McCutchen was based on the assumption that the plan’s terms allowed a fiduciary of the plan to assert an equitable lien.  It turns out the U.S. Airways’ plan document did not contain a reimbursement provision.  This is critical.  Every plan must be carefully reviewed to determine that it has a reimbursement provision.  If there is no reimbursement provision, then there is no basis for an equitable lien.
  • The plan’s fiduciary must be the one that brings the lawsuit against the employee.  That plan’s fiduciary must be expressly identified within the plan documents.
  • The ERISA subrogation claim that is brought must be one to enforce a term within the plan.  If there is no reimbursement provision then there is no term to enforce.
  • The only relief that can be sought under ERISA is equitable relief.  Normally this equitable is in the form of a constructive trust or an equitable lien.  That trust or lien must be against particular funds or property in the employee’s possession.  If the plan seeks simply to impose personal liability on the employee, that is not allowed.  What is allowed is to seek a constructive trust or a lien against the specific funds.
  • ERISA only governs private insurance plans sponsored by the employer.  It does not govern individual health insurance plans.
  • Prior to filing suit you must obtain not only a summary plan description but also the plan document, trust agreement, the documents appointing any fiduciaries and any agreements between the plan and the insurance company.  The plan documents that you want are the ones in existence at the time that the medical benefits were paid as well as the current plan.

With all of those documents in hand, you can then do an analysis as to whether or not you have a basis for contesting any ERISA subrogation claims.

For more information on Personal Injury Claims, see the other pages on this site.

for more personal injury news and views visit, Brien Roche Law

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Wrongful Death Employer Liability http://www.brienrochelaw.com/blog/wrongful-death-employer-liability/ http://www.brienrochelaw.com/blog/wrongful-death-employer-liability/#comments Sat, 11 Oct 2014 18:00:55 +0000 http://www.brienrochelaw.com/?p=9282 Wrongful Death Employer Liability from Brien Roche Law

Recently an Illinois Appellate Court ruled an employer must defend against a wrongful death lawsuit charging negligence in their failure to investigate death threats one of its employees had emailed to his family from his work computer.  In this alleged … Continue reading

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Wrongful Death Employer Liability from Brien Roche Law

Recently an Illinois Appellate Court ruled an employer must defend against a wrongful death lawsuit charging negligence in their failure to investigate death threats one of its employees had emailed to his family from his work computer.  In this alleged negligence case , the company failed to protect the employee’s family from his threatened harm, resulting in their death.

Wrongful Death Employer Liability – Computer Use

As an employee of the Joyce Meyer Ministries (JMM) from 2000 to 2009, Christopher Coleman held security positions within that firm.  Beginning in 2008 while on the job, Coleman used his work computer to send death threats via email to himself, his wife and children which came to fruition when on May 5, 2009, he killed them in their home.

The administrator of the family’s estate, Regions Bank, filed a wrongful death lawsuit against JMM.  Regions’ lawyers claimed they were negligent in failing to protect Sheri Coleman and her two sons from Mr. Coleman’s threatened harm.

Regions asserted that JMM had an electronic communications policy which prohibited employees from using work computers to send harassing/abusive emails among other things.  Having this policy alone permitted JMM to monitor and view any emails sent from its computers and allowed the company to discipline its employees if they violated this policy.  Additionally Regions alleged that JMM was aware that Coleman used his work computer to email death threats to his family and their failure to protect Coleman’s family was due to their failure to enforce their own electronic communications policy.  In that, they failed to discipline Coleman for violating the very policy that they established.

The Appellate Court came to the conclusion that Regions’ Complaint, if true, established that JMM was aware of the death threats that Coleman made to his family while using JMM’s work computer.  Based on JMM’s own electronic communications policy, JMM voluntarily took on the responsibility to investigate those threats and protect the family from Coleman’s threatened harm.

While the trial court’s decision had been to dismiss the negligence claim, the Appellate Court reversed that decision and sent the case back to the trial court for litigation of the merits of that claim.

Wrongful Death Employer Liability – Policy Enforcement

This case puts employer on notice that when they undertake to implement such a policy they also have responsibility to enforce it even if they are not aware of violations of their policy.  It is increasingly more important that employers be vigilant in monitoring employee activity on work-related computers and electronics.  If activity is suspicious the employer should immediately investigate and take necessary action.

Wrongful Death Employer Liability- More Info

For more information on wrongful death actions see the other pages on this site.

for more personal injury news and views visit, Brien Roche Law

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Truck Accidents Driver Fault http://www.brienrochelaw.com/blog/truck-accidents-driver-fault/ http://www.brienrochelaw.com/blog/truck-accidents-driver-fault/#comments Fri, 10 Oct 2014 18:00:51 +0000 http://www.brienrochelaw.com/?p=9291 Truck Accidents Driver Fault from Brien Roche Law

In looking at the issue of truck driver fault in truck accidents the issues of apnea, falling asleep and drug/alcohol usage all must be considered. Truck Accidents Driver Fault – Apnea The truck accident-sleep apnea connection should be looked at … Continue reading

for more personal injury news and views visit, Brien Roche Law

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Truck Accidents Driver Fault from Brien Roche Law

In looking at the issue of truck driver fault in truck accidents the issues of apnea, falling asleep and drug/alcohol usage all must be considered.

Truck Accidents Driver Fault – Apnea

The truck accident-sleep apnea connection should be looked at in most truck accident cases. Sleep apnea is a condition that effects many people, in particular men over 40. It results from the muscles in the back of the throat relaxing to the point where the person cannot experience normal breathing. It typically results in the person waking up at night. This waking up may occur many times during the course of the night resulting in inadequate sleep.

Some of the common characteristics that seem to apply to people that have sleep apnea are the existence of a deviated septum, allergies, sinus problems, a larger than average neck, obesity. Men over 40 in particular are affected by this condition. Many of these men happen to be truck drivers.

As stated in one of the other articles on this site, many truck accidents are sleep related. As such, it may be appropriate to delve into the issue of sleep apnea of the truck driver if in fact there is any issue of sleep being a causative factor.

Sleep apnea can be dealt with surgically for what are called obstructive disorders. There are also non-surgical options such as the use of CPAP which stands for continuous positive airway pressure. This is simply a fancy term for having an oxygen mask over your nose at night so as to allow the continuous flow of oxygen so that there is no interruption of sleep.

CPAP is a somewhat cumbersome means of treatment. There are less awkward means of treatment that will help to open up the airway and to faciliate breathing while sleeping.

Truck Accidents Driver Fault – Falling Asleep

Any truck accident occurring as a result of the truck driver falling asleep at the wheel must involve a thorough investigation of the driver’s medical history. Most drivers are paid by the mile and, as such, the more time that they spend behind the wheel operating their rig the more money they make. Any downtime consisting of refueling time and loading and unloading time are not counted within the driver’s paycheck and therefore may be subject to misstatements as to their frequency or length.

Where it is suspected that a truck driver may have fallen asleep at the wheel there are several things that need to be looked at:

  • Any pre-employment or employment medical examinations as called for under the federal regulations should be closely examined. These may disclose the existence of conditions that are likely to cause loss of consciousness or inability to stay awake. Likewise, they may disclose any medication that the driver is on.
  • If the trailer is a refrigerated trailer, then the loading time and unloading time associated with that trailer is going to be considerably more than if the trailer is a “dry van”, i.e. one that is not refrigerated. This waiting time for the loading and unloading is on duty time but it may not be productive time for the driver in terms of earning income. The maximum time that a driver can be on duty in an eight day period is 70 hours. If he is spending 40 of those hours loading and unloading, then that only leaves him 30 hours of time on the road driving over an eight day period. As such, there may be some incentive on the driver’s part to misreport the amount of loading and unloading time. Logs and “in” and “out” times at dock facilities may be critical documents.
  • Credit card receipts at gas stations may be critical documents because they should show date and time and place of purchase of gasoline. Many fueling facilities, however, have agreements with trucking companies not to show date and time. This information, however, typically should be available from the credit card company.
  • Transponder companies market devices that allow trucks to pass through toll plazas without stopping. Some transponder companies agree not to record date and time of such events. The failure of these transponder companies to record this data pursuant to an agreement with the trucking company may well be relevant at trial. In any event, this information should still be attainable from the entity that monitors the toll booths.
  • Trucking company manuals may be sources of important information in that frequently they may record maximum speeds in various states for purposes principally of informing drivers as to what time frames they need to record on their daily log so as not to exceed permissible speed limits within any given State. The manuals also frequently tell the drivers precisely what documents the company will be looking at to determine driving time. This is a type of veiled message to the driver to make sure that the paperwork is all consistent.
  • Some trucking companies only keep driver’s logs for six months. Under the Fair Labor Standards Act, however, this documentation should be kept for a minimum of two years.

Truck Accidents Driver Fault – Drugs/Alcohol

Truck accidents that involves potential usage of drugs or alcohol by the truck driver need to be thoroughly investigated by obtaining any and all U. S. Department of Transportation mandated or allowed testing that was done of the driver involved in the truck accident. This should include testing of alcohol and/or drug usage. Many trucking companies use third-party administrators to conduct these testing programs. If that is the case, then all of the records from that third-party administrator need to be obtained including information as to how drivers were given notification of impending tests. That is, if the driver was given adequate forewarning of a scheduled drug or alcohol test then obviously that would allow sufficient time to change behavior. Likewise, the criteria employed for labeling a test as negative or positive need to be closely scrutinized. Some medical review officers may decide on their own that the presence of prescription medication in the test results does not need to be reported as being a positive test.

The trucking company is entitled to know all medications and drugs, whether they be legal or illegal, that the driver is taking. Any such documentation is subject to disclosure along with what the trucking company’s response was to such information.

If there is any evidence of any medication or drug usage by the driver, then the entire prescription history of that driver should be obtained from the pharmacy of record. Any medical privilege typically would not extend to this type of information and therefore should be subject to disclosure.

If you have been injured as a result of a truck collision and believe that the driver was under the influence, contact us.

For more information about any truck accident you may have been involved in see the pages on this site dealing with that topic.

for more personal injury news and views visit, Brien Roche Law

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Truck Accident Blackbox http://www.brienrochelaw.com/blog/truck-accident-blackbox/ http://www.brienrochelaw.com/blog/truck-accident-blackbox/#comments Thu, 09 Oct 2014 18:00:33 +0000 http://www.brienrochelaw.com/?p=9288 Truck Accident Blackbox from Brien Roche Law

Truck accident blackbox data must be retrieved promptly.Most heavy duty diesel engine trucks have what is sometimes called a “black box” or more precisely called an Electronic Control Module (ECM)or sometimes called an electronic data recorder. The ECM contains information … Continue reading

for more personal injury news and views visit, Brien Roche Law

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Truck Accident Blackbox from Brien Roche Law

Truck accident blackbox data must be retrieved promptly.Most heavy duty diesel engine trucks have what is sometimes called a “black box” or more precisely called an Electronic Control Module (ECM)or sometimes called an electronic data recorder. The ECM contains information about the truck’s operating parameters, any trouble shooting malfunctions and overall monitors the condition of the truck. Truck owners find this information helpful because it allows them to monitor driver’s habits and to foresee engine problems. This data, however, also allows for an evaluation as to what happened to the truck just before and during a collision, the driver’s reactions, the truck’s speed and the rate of deceleration, if any.

Truck Accident Blackbox Expert

The key to properly obtaining and interpreting this data is to select an ECM expert who is certified by the engine manufacturer and who is also familiar with the basic elements of reconstructing an accident scene. These types of experts can be located by consulting with the engine manufacturer or by looking at various expert directories on the web or printed directories.

Once you have that expert on board some basic things that you are looking for are the following:

  • Hard-brake events. A hard-brake event is as the term implies, one where there is hard braking of the vehicle. These events are frequently a prelude to a collision. The ECM contains one second snapshots of the truck’s speed, brake position, clutch position, cruise control setting, throttle position and many other indices of how the vehicle was being operated just before and at the time of this event.
  • Last-stop records. This type of record is generated when the truck speed drops below 1.5 miles per hour and remains there for 15 seconds. In the event of a collision typically the ignition is going to be turned off and as such that event may be included within the last-stop record. The last-stop data consists of a second by second reporting for 105 seconds before the last-stop and and for 15 seconds after it. It records much of the same data as what would be recorded in the event of a hard-braking.
  • Daily engine use. This data may be available for the days prior to the collision.
  • Diagnostic records.
  • Trip activity. This may be available as part of the data over a specific period of time.
  • Engine calibrations. The ECM may reflect how the trucking company has set the engine for certain restrictions as far as usage.For the data to be reliable the accuracy of the ECM clock must be verified. This is something that your expert should be able to do. In addition, the ECM audit trail should indicate whether or not there have been any modifications made to the ECM and who made these modifications. These are all details that are within the scope of knowledge of the expert.
  • Not only can these devices provide pre-crash vehicle speed but many of them record the location of the steering wheel and the transmission shift, angle of the vehicle, potential rollover data, position of the front seats and whether there was a person in those seats.
  • The analysis of data from the ECM needs to be coordinated with any GPS devices that may be on the vehicle. These GPS devices may so precise as to locate the vehicle in a certain lane. This same type of data may likewise be extracted from cell phones that may have been in the vehicle at the time.
  • In addition, many trucking companies now have on-board video cameras that record not only what is going on in the vehicle but may record what is going on outside the vehicle.
  • Finally, some vehicles have actually been equipped with detection and avoidance systems that are designed to prevent crashes. These devices warn drivers of potential blind spots, approaching objects and also lane location.

Truck Accident Blackbox-Contact Us

For more information about any truck accident you may have been involved in see the pages on this site dealing with that subject.

for more personal injury news and views visit, Brien Roche Law

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