Boston Personal Injury Lawyer - Head & Brain Injuries - Most Popular

Falling Down Stairs

Ken Margolin — Thu, 15 Feb 2007 07:00:00 GMT

Falling down a flight of stairs or even a few steps can cause serious injuries. Broken bones, head injury, and other trauma can result. In determining whether a stair injury case should result in a lawsuit, a number of factors need to be determined in addition to the severity of the injury. Stair injury cases are a form of premises liability litigation. Stair design is one factor to be analyzed. Knowledge of what makes stairs safe and unsafe has been circulated generally in the construction industry for many years. Age of the stairs is relevant. The owner of an older building with stairs narrower than would be designed today, for example, may not be liable for the excessively narrow stairs. There is no obligation known in the law to replace stairs, even if they would be considered unsafe if built today.

Other factors, though, are within the owner's control even in older buildings. If wear has made the surface of steps slick, treads may be required. If there is an odd curve increasing the likelihood that a walker may step off the edge suddenly or have difficulty visualizing the next step, a warning sign or strip may be necessary. Railings can reduce the risk of injuries on stairs and their absence may be negligent in some cases. Poor lighting is a common cause of falls on staircases. Many a condominium association or apartment building owner has assumed that they were free from liability from staircase falls on their premises because their stairs complied with the building code.

Compliance with building codes is important but does not necessarily mean that a stairway is not negligently designed or maintained. Building codes are minimum standards. While failure to comply with the building code is evidence in Massachusetts, of negligence, compliance does not necessarily equal due care. Any case of a fall on stairs resulting in serious injury must be assessed individually to determine whether the stairs were safe for their reasonably intended use and at all times when their use was forseeable.

Originally posted at InjuryBoard by Ken Margolin

Liquor Licensee Liability Laws

Ken Margolin — Tue, 16 Jan 2007 17:00:00 GMT

Most states in the US have some form of laws imposing liability on liquor licensees that serve liquor to clearly intoxicated persons who then go out to cause injury or wrongful death to a third party, usually by causing a car crash. The laws are known as "dram shop" acts. Organizations such as MADD (Mothers Against Drunk Driving) have been quite successful in campaigning and lobbying to get such laws passed in nearly every state except Nevada. A notable example involves a 1999 New Jersey case in which a man who had been at a Giants game hit and paralyzed a six-year-old girl on his drive home. This man had been served fourteen beers at the game. The parents of the girl, whose suit included the stadium, the team and the NFL, were awarded $135 million dollars.

The dram shop laws vary state to state. The central differences lie in the language which defines the alcohol purveyors' standards of gauging patrons' intoxication levels. In some states the person refused service must be visibly impaired in his physical actions or be manifestly intoxicated to the point of posing a danger to himself or others. Still other wording includes directives to withhold alcohol from persons who are known alcoholics, or the "habitually intoxicated." In a 1981 Massachusetts appellate ruling, the Court held that evidence of "loud and vulgar" behavior on the part of the patron who leaves drunk and causes a car crash, is sufficient evidence to advance the case to a jury.

With the dram shop laws, state legislatures are trying to balance the practical difficulty faced by waiters, waitresses and bartenders in determining who has had too much to drink, with the need to force establishments that serve alcohol to do all they can to protect the public. Requirements such as the one in the Massachusetts dram shop act, that a jury find the conduct of the establishment "wilfull, wanton, or reckless" provide adequate protection to responsible bars and restaurants - though the owners might think otherwise. Opponents of the dram shop laws, generally owners of places that serve liquor, claim that it is impossible, especially in the noisy atmosphere of a bar, to separate the merely fun-loving animated patron from the dangerously drunk. Proponents of the laws and those who want them strengthened, argue that the privilege of owning a liquor license, which can be worth a great deal of money, should carry with it the obligation to insure that staff serving liquor are properly trained to recongize when someone has had enough.

Dram shop cases are not easy to win unless there is solid evidence, generally from witnesses, that the person who caused a serious motor vehicle accident was openly and obviously drunk when the establishment served him more alcohol. When juries make such findings, however, they often show their anger at the irresponsible establishment by awarding large verdicts to seriously injured plaintiffs.

Originally posted at InjuryBoard by Ken Margolin

PET Scan Aids Large Brain Injury Settlement

Ken Margolin — Wed, 29 Aug 2007 13:40:00 GMT

This week's Massachusetts Lawyers Weekly, reported a $3.3 million dollar settlement in a brain injury case. The plaintiff was a contractor in his mid-40s, who was allegedly struck by an improperly secured piece of equipment, while climbing a ladder in a poorly-lit area of the water supply tunnel project on which he was working. After the blow, he complained of headaches, hypersensitivity to sound, forgetfulness, inability to organize, and other classic traumatic brain injury symptoms.

The settlement was noteworthy because both CT Scans and MRIs, long used to diagnose brain injury, showed no injury. Positive Emission Tomography ("PET") and a Quantitative Electroencephalograph ("QEEG") scans, however, showed areas of the brain that were damaged. PET and QEEG scans are not new, but have been constantly improving. In some head injury cases, they may still be subject to challenge on the basis that they are not sufficiently accepted scientifically, for their results to be admitted into evidence.

The defense in the reported case did not mount such a challenge. Plaintiff may have been aided by evidence that one of the defendant's managers lied during his deposition. He testified that the area where the plaintiff was hurt was "lit up like Fenway Park." The construction team, however, had filed a report describing the area as dark. Moreover, a former employee was prepared to testify that the same manager warned him to keep his mouth shut about the area being dark.

For more information on this subject matter, please refer to the section on head and brain injury.

Originally posted at InjuryBoard by Ken Margolin

Real Tort Reform

Ken Margolin — Sun, 17 Dec 2006 12:30:00 GMT

I grudgingly give credit where it is due. The insurance, big corporate cabal, has run one of the most brilliant public relations campaign in the history of duping the American public. Their first ploy was the one most essential in any media campaign - they captured the linguistic high ground. Everyone believes in reform in the abstract, and the forces who want to eliminate the rights of Americans injured by corporate and professional negligence, made the phrase "tort reform" their own.

Even plaintiffs lawyers who should not be lulled, rail against "tort reform," unwittingly granting the phrase to the anti-justice movement. During the last decade or so, the anti-justice forces have persuaded millions of Americans, potential jurors all, that fairly compensating victims of corporate greed or medical incompetence, handicaps this country in the global marketplace, and is almost anti-American. The anti-justice group has pounded out an ongoing message that many plaintiffs are frauds and cheats; this big lie has caused many jurors to impose a mental barrier of mistrust that legitimate plaintiffs must overcome. Worst of all, the anti-justice campaigners have achieved real success in many state legislatures, limiting the rights of victims of even grotesque medical malpractice or defective products.

The much maligned plaintiffs' bar took awhile to gain momentum in its counter-campaign, but has now gained some traction, has stemmed the bleeding, and has the chance to reverse some of the worst affronts to elemental fairness. Real tort reform would acknowledge the greatness of the jury system, with its occasional flaws and all, would respect our own great justice system, and would elevate the common man back to equality with the wealthy and powerful.

Here is what a real tort reform platform would look like: (1) roll back the disgraceful legislation that limits compensation for pain and suffering to people whose quality of life has been impaired by the negligence of others; (2) repeal as well statutes that interfere with the right to contract by limiting attorneys fees, as a cynical way to make it impossible for many victims of negligence to find attorneys able to afford accepting their cases; (3) impose harsher penalties on the common defense tactics of withholding documents, over-cueing defendants during depositions, and abusing the discovery process to wear down plaintiffs; (4) provide enough money for state court systems so that any tort victim can be assured of a trial within 36 months - a modest goal, still beyond the reach of many plaintiffs in many states; (5) expand, not contract, the ability of juries to award punitive damages when they find gross negligence or intentional disregard of dangers in products or practices.

That's tort reform. What the other guys are selling is an anti-justice campaign, which is the label we should give it, in a message we should tenaciously spread to the public.

Originally posted at InjuryBoard by Ken Margolin

Home Depot's Falling Merchandise

Ken Margolin — Wed, 01 Aug 2007 15:30:00 GMT

Obtaining data on the number of people injured at big box stores such as Home Depot, is difficult. The information is guarded like state secrets. Data generated in litigation, however, has revealed that the big box giant, Home Depot, has had an ongoing problem with falling merchandise killing and maiming customers. One lawsuit revealed that in the late 1990s and early 2000s, more than 2,200 people per year were being injured at Home Depot stores. In 2004, an Idaho jury awarded $570,000 to the family of a 3-year old girl killed by falling countertops. A North Carolina jury awarded $500,000 in 2005 to the family of a 12 year old boy who suffered head injuries from a falling steel door at a Home Depot. Another falling door in a Home Depot, killed a 6 year old boy named Ivan SanMiguel. These and many other catastrophes will continue until Home Depot spends enough of its profits on customer safety. The steps needed to prevent merchandise from falling in big box stores, are simple and well known. The knowledge is useless without the will and funds to implement necessary safety measures.

Originally posted at InjuryBoard by Ken Margolin

Preventing Drowning Deaths

Ken Margolin — Mon, 04 Jun 2007 07:00:00 GMT

You may have read the sad story last week, of the two toddlers who left their house, wandered down to a nearby pool, and drowned while their babysitter slept. The purpose of this blog is not to speculate on blame in that tragedy. It reminds us that summer season is here and with it, comes too many drowning deaths that could have been prevented. As was illustrated by the death of the two little girls, children can't be left unwatched for even a moment if there is a body of water nearby. Pools, lakes and ponds are attractive to children, who often have no sense of the danger they present. Drownings, especially of small children, can happen in an instant.

Pools must be maintained to be as safe as possible. Water should be kept clear so that no one can slip beneath the surface unnoticed. Pools need to be clear of any device or condition that can trap someone under water. They should not be open and accessible to a child wandering into the yard. Pools are often designed with a sharp dropoff from shallow to deep, a hazard for any pool user who can't swim. Diving board injuries can occur if the diver becomes unconscious or unable to swim, after hitting the water. Life preserving equipment, such as long poles and buoys, should be at every poolside. Commercial enterprises, such as hotels and motels, have an especially high obligation to heed basic safety precautions. Pools provide great fun for millions of Americans. There will inevitably be some drownings. Basic safety precautions can minimize their number.

Originally posted at InjuryBoard by Ken Margolin

Failure to Warn

Ken Margolin — Mon, 29 Jan 2007 14:15:00 GMT

Tools and machines, simple and complex, carry risks. Manufacturers have an obligation to design their products to eliminate the most obvious risks, for example, placing effective hand guards on power tools. Obviously, though, the ways in which tools and machines may be used are many. Mechanical design safety measures have some practical limits, not the least of which is financial.

One the simplest and most economical ways that manufacturers can prevent many injuries, is by placing adequate warnings on their products. Warnings remind the user of the product to be cautious and to avoid behaviors known by the manufacturer to be dangerous. Take a cherry picker, for example. The manufacturer knows that it will frequently be used at the level of power lines. It is not hard to imagine an obligation that a warning appear in some strategic spot on the machine, telling the user to avoid contact with power lines. In order to be effective, a warning must be designed to prevent or change behavior. To that end, it must be placed where it is likely to be read, must be large enough and/or obvious enough that is easily seen, and it must be easy to understand. Some research suggests that the use of pictures as well as words carries the highest likelihood of success.

Juries are most open to failure to warn theories when the potential danger would not necessarily be obvious to the user and where the product user was not excessively negligent themselves. A failure to warn allegation in the case of a dangerous product can be especially powerful when the manufacturer was aware of multiple injuries do to certain types of uses or conduct with its product, and simply failed to add a warning to minimize future harm.

Originally posted at InjuryBoard by Ken Margolin

Hospital Falls

Ken Margolin — Mon, 17 Sep 2007 15:45:00 GMT

A great deal of attention has been paid lately - rightfully so - to the subject of infections contracted in hospitals. Less focus has been placed on another source of serious and preventable injuries in hospitals - falls. The result of a fall down injury in a hospital may be severe. Patients are ill and often debilitated or disoriented to begin with. If a patient's condition presents any appreciable risk of falling, the hospital has the obligation to assess and document the risk, and to take appropriate precautions.

Fall precautions may take many forms, for example, accompanying the patient, in a geri-chair, to the bathroom, prompt response to patient calls, raised side rails on the bed if no nurse is in immediate attendance, doctor's orders that the patient be accompanied by a nurse or aide whenever mobile, even restraints where appropriate. Once a fall down risk is appreciated, the patient's risk assessment must be kept up to date throughout the patient's hospital stay. Hospital falls can result in severe injuries such as broken hips, traumatic brain injury, and other harm inconsistent with the hospital's role as a place of healing.

Originally posted at InjuryBoard by Ken Margolin

The Voir Dire Debate

Ken Margolin — Wed, 08 Nov 2006 07:00:00 GMT

Voir dire is the process whereby potential jurors are questioned before they are selected, to probe for biases that might impair their ability to impartially judge the facts. Voir dire has been described in a "Law Day" outline of the American Bar Association, as "one of the most important aspects of any trial." Massachusetts is one of only a few states in the country in which voir dire is not conducted by the attorneys.

Attorney-conducted voir dire is an important trial skill. A seasoned attorney not only attempts to discover bias, but also to give the potential jurors an overview of the attorney's case. This must be done subtly, since overt argument is not permitted. The attorney also has the opportunity to gain a rapport with his future jurors, before the formality of the trial itself. The importance of voir dire becomes apparent in cases such as medical malpractice or products liability cases, in light of the decade-long campaign of business and medical professional lobbies to convince people that these cases are bad for the economy and the country.

While Massachusetts attorneys can recommend questions for the judge to ask the jurors, the judge retains discretion over what questions to ask and how to word them. Voir dire by most judges tend to be dry and perfunctory affairs. Most jurors, when asked, "are you biased against medical malpractice plaintiffs?" will answer, "no," regardless of their true beliefs. When attorneys can engage in a more thorough and less direct dialogue, bias is more likely to be uncovered. Unfortunately, most Massachusetts judges opposed attorney voir dire. Whether their motive is control or the often stated rationale that too much time will be consumed by the process, is unclear. While most trial attorneys would like the ability to conduct voir dire themselves, change in Massachusetts is unlikely any time soon, as Massachusetts' budget for the judiciary is inadequate. When courts struggle to keep up with existing caseloads, changes that add process are usually not high on anyone's list.

Originally posted at InjuryBoard by Ken Margolin

Mediation of Personal Injury Cases

Ken Margolin — Thu, 31 May 2007 07:00:00 GMT

Clients often ask me if "my case will have to go to court?" By that question, they mean, will it have to be tried before a jury, or will it settle "out of court." Most clients, even those who appreciate that they could get significantly more money with a verdict than through settlement, prefer the surety of a settlement over the high stakes gamble of a big score vs. nothing. Sometimes a case that appears inevitably headed for trial, can be resolved with the help of a professional mediator.

Many courts now require counsel to file a certificate, attesting that they have discussed with their clients, the possibility of alternate dispute resolution ("ADR"). Some clients are eager to mediate a case, thinking it a quick road to compensation. I explain to my clients that mediation can result in a fair settlement, but only if used properly, and in the right case. The most important point I make to clients is that mediation cannot be seriously considered too early, lest the defendant's insurer take it as an opportunity to offer short money. In a case of serious personal injury, there is usually no alternative to completing discovery before mediation is proposed.

Mediations in wrongful death cases or other serious injury cases, can never be approached casually. I generally prepare a mediation book to be distributed to defense counsel, the insurance adjustor, and the mediator. The book - a large 3-ring notebook, will contain a bullet point summary of plaintiff's position, and key deposition pages and exhibits advancing plaintiff's case. In appropriate cases, I will be prepared with blowups or other demonstrative evidence, including day-in-the life or other persuasive videos. In one case, involving a little girl who died when an improperly protected construction trench collapsed on her, I used a CD of the mother's chilling "911" call.

The purpose of a mediation is to persuade the defense that they face significant exposure at trial. Even though there are no rules of evidence at mediations, I use exhibits and demonstrative evidence that I know will be admissible at trial. Although I may make an exception, for example, a narrated day-in-the life, I want to avoid using evidence that is dismissed because defense counsel advises the insurance adjustor that a jury will never see it.

I always caution my client not to go into a mediation believing that they must come out of it with a settlement at any cost. Every experienced plaintiff's counsel has seen the mediation process abused, with the defense proffering a trivial offer, and using the mediation for discovery purposes. Other times, if the defense sees a strong plaintiff's case and is unable to extract excessive concessions at mediation, a case that fails to settle by the end of the day, may still settle before trial. The mediation will not have been wasted, because it set the stage for settlement.

I will write a piece on the subtleties of the mediation process in another blog. Mediations can be useful tools, if prepared for thoroughly, and attended with the attitude that trial is the answer if the defense is too stingy by mediation's end.

Originally posted at InjuryBoard by Ken Margolin