Brien Roche Law http://www.brienrochelaw.com Fri, 24 Oct 2014 22:42:43 +0000 en-US hourly 1 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.

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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.

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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.

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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

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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

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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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Truck Accidents http://www.brienrochelaw.com/blog/truck-accidents/ http://www.brienrochelaw.com/blog/truck-accidents/#comments Wed, 08 Oct 2014 18:00:23 +0000 http://www.brienrochelaw.com/?p=9285 Truck Accidents from Brien Roche Law

Truck Accidents-Monster Trucks Monster trucks are becoming an increasing hazard on the roadway. Twin-trailer trucks are two to three times more likely to be invovled in a truck accident than are standard trucks. These trucks can be more than 100 … Continue reading

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Truck Accidents from Brien Roche Law

Truck Accidents-Monster Trucks

Monster trucks are becoming an increasing hazard on the roadway. Twin-trailer trucks are two to three times more likely to be invovled in a truck accident than are standard trucks. These trucks can be more than 100 feet long. At that length, they become inherently unstable. They are increasingly subject to jackknifing and rollover. They are slower on acceleration which thereby delays traffic, in particular going uphill and when merging. They are subject to increased side to side movement in heavy wind conditions. On wet roads they effectively create a splash effect that travel in parallel lanes is almost impossible.

Truck Accidents-Improper Maintenance

Truck accidents due to improper maintenance can be fatal. A recently reported jury verdict in Texas involved a truck wherein the drive shaft broke off underneath the tractor-trailer and flew into an oncoming lane. The 20-pound metal shaft crashed through the window of an oncoming vehicle striking the driver and resulting in his death.

The Plaintiffs in the subsequent lawsuit presented evidence that U-joint holding the drive shaft in place had melted because of insufficient lubrication. This permitted the drive shaft to rip out of its placement. The lawsuit claimed that the U-joint had not been lubricated for at least four to six months before the incident.

The U-joint manufacturer recommended lubrication every 5,000 miles.

In addition the Plaintiffs asserted that the president of the trucking company knew that the fleet manager lacked the necessary qualifications to deal with these maintenance issues but allowed him to remain in that position.

Also a punitive damage award was sought on the grounds that the trucking company knew or should have known that the U-joint cross-piece would fail with potentially dangerous results. During the course of discovery it was learned that a mechanic at the truck company knew about this and other U-joints in the fleet’s trucks that had failed because of inadequate lubrication.
A substantial jury verdict was returned in this Texas case.

For more information about truck accidents, see other pages on this site.

Truck Accidents-Underride

Underride refers to a motor vehicle riding under the back of a truck. This can have disastrous consequences. The U. S. Department of Transportation has published written standards regarding proper rear-impact guards for tractor trailers. There is some ongoing controversy as to what those rear-impact guards should consist of and exactly how high off the ground they should be. Under earlier regulations the rear guards could be has high as 30 inches off the pavement. That regulation may still govern some vehicles. Safety advocates maintain that the rear guards should be no higher than 18 inches above the pavement to prevent compact cars from riding under, that the strength requirements of these guards is about half what they should be and that the existing regulations should be made retroactive to apply to all tractor trailers on the roadway.

The regulations in existence do nothing to encourage the use of rear guards that actually absorb energy through the use of hydraulics. The guards that are on most vehicles at this point are fixed objects that do not absorb impact but simply are designed to prevent the striking vehicle from riding under.

The fact that the federal government has promulgated regulations dealing with this issue may, in some instances, create a federal preemption question. In general, however, state tort claims are preempted by federal regulation if the scope of the federal statute indicates the intent to occupy that field exclusively, compliance with both federal and state requirements is rendered impossible and state law somehow contravenes the congressional purpose. In regards to underride legislation, Congress has not demonstrated any intent to occupy that field exclusively and, as such, federal preemption should not be a bar to asserting state tort claims.

If you or a loved one has been injured as a result of underriding, contact us.

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

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Drunk Drivers http://www.brienrochelaw.com/blog/drunk-drivers/ http://www.brienrochelaw.com/blog/drunk-drivers/#comments Mon, 06 Oct 2014 18:00:39 +0000 http://www.brienrochelaw.com/?p=9278 Drunk Drivers from Brien Roche Law

A man in Florida who suffers from brain damage due to an accident caused by a drunk driver was awarded $5 million as settlement in his personal injury claim.  In 2007 Dwight Grant, a passenger in a stopped vehicle, was … Continue reading

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Drunk Drivers from Brien Roche Law

A man in Florida who suffers from brain damage due to an accident caused by a drunk driver was awarded $5 million as settlement in his personal injury claim.  In 2007 Dwight Grant, a passenger in a stopped vehicle, was hit by Matthew Lyons who was being pursued by the police.  After Lyons hit the car that Grant was in, Lyons left the scene.

Grant received fractures to his skull and face.  This hit and run collision resulted in Grant’s traumatic brain injury to his frontal lobe.  Grant requires constant care due to the seizure disorder he now suffers from.

Defense counsel for Lyons claimed that Grant was not diligent in his rehabilitation or in taking his medication and that this intensified his condition.  The jury found Grant 2% liable for his condition and this reduced his initial $15.4 million award.  The case eventually settled for $5 million.

Drunk Drivers-Insurance Coverage

Although drunk drivers are sometimes punished through substantial court awards, more often than not those awards are unpaid.  Many people carry minimum insurance policy limits.  In fact in many jurisdictions, motorists are not even required to have insurance coverage.  For instance in the state of Virginia, insurance coverage for an automobile is not required.  If however you do not have insurance coverage then you are required to pay an uninsured motorist fee.

That results in a number of motorists on the road simply being uninsured.  If you have the misfortune of being struck by a drunk driver who is also uninsured, then your recovery is limited to whatever may be your uninsured motorist coverage.  In many liability policies there is coverage for what is called an uninsured motorist.  If you are struck by a motorist who is uninsured, then your uninsured motorist coverage may apply.  You may be able to recover up to whatever your uninsured motorist limits are.

Drunk Drivers-Uninsured Motorist Coverage

The oddity of an uninsured motorist claim is that it puts you adverse to your own insurance company.  That is you are seeking to recover money based upon the conduct of a third party.  The entity however that is going to be paying you for that misconduct of the third party is your own insurance company.  The purpose of course of uninsured motorist coverage is to provide you (the insured) a source of recovery in the event that at-fault motorist does not have adequate coverage.

For more information on drunk drivers, see the other pages on this site.

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Head Injury http://www.brienrochelaw.com/blog/head-injury/ http://www.brienrochelaw.com/blog/head-injury/#comments Sun, 05 Oct 2014 18:00:10 +0000 http://www.brienrochelaw.com/?p=9280 Head Injury from Brien Roche Law

In a new case filed in the Superior Court of California in September 2014, Chelsea Oliver has sued the National Football League. Head Injury-CTE Mrs. Oliver was the wife of Paul Oliver, former San Diego Charger and New Orleans Saint … Continue reading

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Head Injury from Brien Roche Law

In a new case filed in the Superior Court of California in September 2014, Chelsea Oliver has sued the National Football League.

Head Injury-CTE

Mrs. Oliver was the wife of Paul Oliver, former San Diego Charger and New Orleans Saint who had been suffering from Chronic Traumatic Encephalopathy (CTE) and other forms of traumatic brain injury.Mr. Oliver and his family had not known that at the time.

The diagnosis of brain trauma came to light after Paul Oliver shot himself in the head in front of his wife and family in 2013.

The 88-page Complaint reads, “At the time of his death, decedent Paul Oliver was suffering from then, still undiagnosed, severe and debilitating brain injuries including Chronic Traumatic Encephalopathy as a result of the repetitive head trauma and concussions he suffered while playing professional football for the San Diego Charters and the New Orleans Saints from 2007 through the 2011-2012 season.”

The Complaint went on, “From the first snap of a youth football until his tragic death, Paul Oliver’s decision-making regarding football was materially impacted, to his detriment, by defendants’ misconduct,”  “Since its inception, the [National Football League] has gone outside of any labor agreement to gratuitously and voluntarily control and regulate every aspect of the football community at large, particularly with respect to safety and health.”

Head Injury-Reckless Culture

The old culture within NFL players used to be to shake off a head injury and get back on the field.Many would go back on the field within minutes of sustaining a concussion. That culture has resulted in many of these men living for years after their career ends with severe impairments. The impairments frequently go untreated as was the case here.

The liability of the NFL is premised on the idea that they knew of the severity of these impacts and resulting head injury and took no steps to prevent them or to treat the players who were experiencing them.

It is expected that the case will be tried in front of a jury.

For more information about head injury see the other pages on this site.

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Drunk Driving http://www.brienrochelaw.com/blog/drunk-driving/ http://www.brienrochelaw.com/blog/drunk-driving/#comments Sat, 04 Oct 2014 18:00:14 +0000 http://www.brienrochelaw.com/?p=9279 Drunk Driving from Brien Roche Law

In an effort to combat drunk driving in the Commonwealth of Virginia, Governor Terry McAuliffe introduced the Virginia Faces of Drunk Driving website.  McAuliffe dedicated the Tumblr site to the people whose lives were ended by drunk drivers and also … Continue reading

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

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Drunk Driving from Brien Roche Law

In an effort to combat drunk driving in the Commonwealth of Virginia, Governor Terry McAuliffe introduced the Virginia Faces of Drunk Driving website.  McAuliffe dedicated the Tumblr site to the people whose lives were ended by drunk drivers and also to those who have been left behind.

Drunk Driving Fatalities

Drunk driving fatalities in 2013 increased for the first time in six years in the Commonwealth.

The Virginia Faces of Drunk Driving profiles those victims showing them in happier times prior to their deaths accompanied by stories about the victims written by their loved ones who survived.  The goal behind Virginia Faces of Drunk Driving is to deter future drunk drivers from even getting on the road.

As McAuliffe said, “Given that drunk driving is a 100% preventable crime, even one death is too many.”  “I am committed to reducing drunk driving fatalities by continuing our Commonwealth’s enforcement efforts, and raising awareness with Virginians that we all have a responsibility to keep our Commonwealth safe.  With this new site providing intimate portrayals of individuals lost to drunk driving and the tragic burden it places on survivors, or aim is to save lives and stop drunk driving before it starts.”

Incredibly approximately two Virginians die every three days on average due to drunk drivers and in 2013, 253 Virginians were killed in traffic crashes that were related to alcohol use.  That was an increase of nearly 10.5% in 2013 compared to the prior five years that had shown declines in deaths due to drunk driving.

Drunk Driving Srikeforce

In 2002 Virginia began Checkpoint Strikeforce which was designed to get drunk drivers off the roadways using checkpoints, patrols and education about the dangers and fallout of drunk driving.  While Virginia’s goal is to target all potential drunk drivers, the campaign specifically focuses on males aged 21 to 35.  This demographic represents an estimated 1/3 of all Virginians killed in alcohol-related crashes last year.

For more information on the impact of drunk driving in Virginia, see the other pages on this site.

 

 

 

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