Wednesday, March 13, 2019

Personal Injury cases are legal disputes arising from a circumstance in which one person suffers harm from an accident or injury and believes that someone else or some other entity (such as a corporation) is legally responsible for the resulting physical and emotional harm.

The vast majority of personal injury cases are settled out of court, either before a lawsuit is filed, once one has been filed, or even after the case goes to the judge or jury.

The stages of a personal injury case may include some, or all, of the following: 

• Attorney consultation to discuss details of case and to see if you two are a good fit
• Filing initial court papers
• Fact-finding and discovery, including getting information from the opposing team regarding physical evidence, witnesses, and medical data
• Resolution before trial — frequently there are Motions to Dismiss before trial
• Settlement — in most cases lawyers on both sides negotiate a settlement, sometimes a structured settlement
• Trial — if the case is not settled, it goes to trial
• Collecting money after judgment
• Appealing a decision or judgment

There may be a limited time frame after the injury occurs during which a personal claim may be filed. This time period, known as a statute of limitations may vary from one state to another.

A personal injury case is normally a matter for civil court, unless the personal injury results from a deliberate assault. The defendant is not required to prove that the plaintiff’s version of the facts is untrue, nor must the defendant offer an alternative version of the event. It is only necessary that the defendant convince the jury that there is a 50 percent chance that the plaintiff’s version is inaccurate for the defendant to win.

In a battery claim, both injury and intent must be proven. If someone brushes by you and you trip, your injury may be accidental or your own fault for having poor balance. If someone intentionally punches you and breaks your nose, however, both injury and intent to injure are present and you, the plaintiff, will probably win your case.

Assumption of Risk

There is another element to personal injury cases — assumption of risk. This element most often arises in cases of sports injuries when the jury may believe that the plaintiff understood “more likely than not” that some risk was involved in the sport he or she voluntarily engaged in.

Obviously, not all cases of personal injury are clear-cut and not all opponents or witnesses are honest. This is why it is important to have a knowledgeable personal injury attorney at your side. 

Can a power company be liable for damages when it cuts off electricity for non-payment? 

Patients who depend on oxygen machines to survive require electricity 24/7. Tragically, when the Sam Houston Electric Company cut power to one of its subscribers for non-payment of $129.62, the result proved fatal. The family of the deceased is seeking in excess of $1 million in damages for wrongful death and gross negligence. Without power, the victim’s oxygen concentrator could not work, nor could he call for help since his phone also required electricity.

Was the utility obligated to know about the customer’s fragile health and keep power flowing regardless of payment? Sam Houston Electric Company claims in court filings that neither the victim nor his family notified the utility that he might need payment assistance. They consider the death an “unavoidable accident.”

The victim’s family, however, says the utility knew of both his disability and his financial predicament. In the past, the utility had given the victim up to four months to pay and social service agencies had sometimes been involved. Because of this history, according to the family, the victim was not worried about being one month in arrears.

According to the Public Utility Commission of Texas, utility customers suffering from a critical medical condition can sometimes prevent power shutoffs with preemptive steps. The customer can provide a utility with a written statement by a physician stating that electricity is essential for life support. The customer can also request a deferral of payment for up to 63 days. After payment, it can be renewed for another 63 days.

These rules may not apply to Sam Houston Electric Company, however, because it is a “cooperative,” outside the Public Utility Commission’s jurisdiction. As a cooperative, it sets its own rules. Attorneys for the victim say that he did not need to send a note from his physician because the cooperative did not require it. They claim he met their requirements by notifying them that he was disabled and dependent on medical equipment to sustain his life.

In addition, the family notes that power was cut off on a holiday. The 10-day termination notice the utility sent on November 17 promised not to end service on a holiday.

There may be grounds for holding the power company liable for foreseeable consequences of its negligence, and customers do have ways to avoid power cut-offs when their lives may be at risk. It remains to be seen whether the facts in this case are the basis of a winning wrongful death lawsuit.  This is why it is important to have a knowledgable personal injury attorney at your side.

Johnson & Johnson was ordered by a St. Louis jury to pay $62 million in compensatory and punitive damages to the family of a woman who died of ovarian cancer after using the company’s Baby Powder and Shower to Shower for feminine hygiene. The company was found guilty of negligence, failure to warn (a key element of the case), and conspiracy to conceal risks associated with its products. Of the $72 million award, $10 million were for compensatory damages and $62 million were added for punitive damages.

The trial is the first of 1,200 ovarian cancer claims filed in the last two years against J&J and the company that supplied the talc — the ingredient that was found to be the cause of the deceased woman’s ovarian cancer. The company said in a statement that it is committed to the safety and health of consumers and reiterated its belief, “supported by decades of scientific evidence,” that cosmetic talc is safe. J&J is expected to appeal the verdict.

During the trial, the company argued there was no evidence directly linking talc to ovarian cancer and without a causal connection, there was no reason to warn consumers of the risks.

The Grim Statistics of Ovarian Cancer

• About 20,000 U.S. women annually are diagnosed with ovarian cancer
• The disease strikes about one in 70 women
• More than 14,000 women die each year of the disease

As it relates to this case, there are studies, refuting J&J’s claims of no causal connection, indicating a higher ovarian cancer rate of 35 percent in women who use talc-based powder for feminine hygiene. Moreover, the talc powders have been used by many women for long periods of time. Talc is said to be the “softest of minerals,” which is widely used in industrial and consumer products, including paints, paper, rubber, roofing and ceramic materials, a filler in capsules and pills and in cosmetics, as well as a food additive.

Warning Signs of Talc and Ovarian Cancer

The potential of a possible link between talc and ovarian cancer was first revealed by British researchers in 1971 who found talc particles embedded in 10 ovarian tumors. More than 10 years later, a study in the journal Cancer showed a “statistical link” between genital talc use and ovarian cancer. A more recent study by a co-author of that report found a 33 percent higher rate of ovarian cancer among women who used talc for feminine hygiene. Moreover, in a prior case against J&J in 2013, a jury found the company guilty of failure to warn of the ovarian cancer risks, but awarded no damages because they were not convinced of a direct link to talc use.

Based on these studies, some health advocates have been calling on talc manufacturers to warn against using the products for genital hygiene. While it remains to be seen whether J&J will prevail in its appeal, the possible link between talc and ovarian cancer, and the company’s failure to warn consumers, will be the overarching issue in the 1,200 claims the company is facing. In the end, proving negligence because of a failure to warn requires the skills of a personal injury attorney who is well-versed in product liability law.

Consumer product manufacturers are under a heightened duty to ensure their goods are safe and hazard-free. If a product is dangerous, with the potential to cause injury, manufacturers design the product in the safest way possible to help minimize the risk of severe, catastrophic injuries, and must issue clear warnings as well.

With extremely dangerous items, like guns or explosives, manufacturers are under what is known as a “strict” product liability standard –- or, the product is so inherently dangerous, the plaintiff will prevail in his or her lawsuit regardless of any applicable defenses to the plaintiff’s allegations.

Relying on these principles, a Texas man recently filed a product liability lawsuit against Remington, the gun manufacturer, after losing his leg to an accidental gunshot wound. According to the allegations, a defect in the man’s hunting rifle –- known as the “Model 700” – caused the gun to discharge unexpectedly.  More specifically, the man alleges he was sitting in the passenger seat of a vehicle while on a hunting trip with friends. Immediately preceding the injury, a friend handed him the rifle – muzzle side down – after which he transferred the gun from his right side to the left. In so doing, the gun went off, striking the man’s right leg, and ultimately requiring an amputation.

Remington rifles have been named in an onslaught of lawsuits, particularly pertaining to problems with the trigger—which is known to discharge the weapon without actually being pulled. More specifically, the lawsuit alleges that a bolt located near the trigger will cause the gun to discharge when simply tapped or bumped, creating an exceedingly dangerous situation for consumers.

Recently, Remington settled a series of trigger-defect lawsuits involving its previous design known as the “Walker Fire Control.” Its replacement trigger design, known as the “X-Mark Pro” has been subject to substantially fewer lawsuits, but consumers are claiming defects with the new design nonetheless.

If you are facing a recent injury with a consumer product, including an appliance, automobile or firearm, contact an experienced and skilled personal injury attorney promptly to discuss your legal options to obtain compensation.

What are some of the dangerous complications of having metal hip replacements?

Though many recipients of metal hip implants have been completely satisfied with their medical devices, thousands of patients who have gone through the surgery have reported serious problems. It a great many cases, such dissatisfaction has resulted in recalls, lawsuits, and even government action.

While over the past many years, metal hip replacements have become increasingly common as an improvement on plastic and ceramic prosthetics for replacement of the ball-and-socket joint of the hip, promising relief from the severe pain of osteoarthritis or athletic injury, there has been a high rate of complications with these metal devices. This has been true whether the patients having metal hip replacements were over or under the age of 50. Since 285,000 hip replacement surgeries are performed each year, and since medical research has shown a failure rate as high as 50 percent within six months, we are talking about a very serious problem.

Types of Problems Reported with Metal Hip Implants

Many types of problems have arisen with metal hip implants, including:

• Metal debris left inside the body
• Cobalt Toxicity, when flakes of cobalt enter the body
• Other metallosis, when metallic components in implants abrade one another

When metal hip replacements fail, they require surgical replacement.

Symptoms of Metallosis and Cobalt Toxicity

Metallosis occurs when two portions of the joint replacement rub against one another, causing metal flakes to chip off and enter adjacent tissues and blood vessels. This can result in pain around the hip joint, as well as swelling and inflammation, numbness, bone loss, tissue death, and a recurrence of mobility problems. Even more frightening, metal flakes can travel to other organs, such as the heart, leading to dangerous complications.

Cobalt Toxicity

In addition to the symptoms brought about by other types of metallosis, when cobalt has been used as the material for the hip replacement, patients may also suffer from cobalt toxicity. Elevated cobalt levels can result in fever, inflammation, and lowered thyroid hormone levels. In severe cases, patients can also experience heart failure, loss of vision, loss of hearing, and organ damage.

Recalls and Lawsuits

Because of the high rate of failure in metal hip replacements, most manufacturers no longer sell them. Not only did the various patient injuries lead to widespread negative media coverage, increased research studies, and elevated levels of government regulation, but thousands of patients filed product liability lawsuits against the manufacturers of the defective replacement hips. Some manufacturers have already settled hip replacement lawsuits. Johnson and Johnson (the parent company of DePuy Orthopedics), for example, has agreed to settle claims for $2.5 billion. Lawsuits against other metal hip replacement manufacturers are still pending.

If you have suffered personal injury or illness as a result of an artificial hip replacement or the implantation of some other medical device, be sure to contact an attorney experienced in this particular branch of law to find out whether you are entitled to monetary compensation. You may be entitled to a new replacement joint, as well as damages even if you have not yet experienced any pain or difficulty.

Does the statute of limitations bar a county from trying to recover medical costs after waiting for five years?

In 2010, a Texas sheriff’s deputy responded to a call seeking assistance with a traffic stop of a possible stolen car. With flashing lights and siren on, he sped to the scene but, en route, had to swerve to avoid soundproofing that fell off a flatbed truck. Gravely injured, he died eight days later in the hospital.

The deputy’s father and son both sued the company that owned the flatbed truck and its driver. The deputy’s widow settled with the company separately, out of court.

Years later, Fort Bend County has sued the widow and her two children seeking recovery of $300,000 in medical costs it paid when the officer was hospitalized before his death.

The county says it “is entitled to the first monies paid by any third party,” notably the funds the trucking company to paid the victim’s family.

Attorneys for the victim’s family say that the county missed its chance to sue and is now barred by the statute of limitations, which, they say, expired two years after the accident. There were, say the attorneys, at least two previous opportunities for the county to try to recover the medical costs, but now, five years on, it is too late.

A local petition drive has expressed outrage that the county is seeking reimbursement from the late officer’s family and has called upon Fort Bend to drop the suit. The county insists it is duty-bound to try to recover taxpayers’ funds. The family of the victim, however, regards the lawsuit as “a sucker punch.” As of this writing, the case was still moving forward.

Surviving a personal tragedy emotionally is, sadly, often only part of the challenge. Often a pitched legal battle ensues over fair compensation for plaintiffs, with defendants launching unexpected defenses and counterattacks. If you have suffered from the carelessness or wrongdoing of others, it is important to have an expert personal injury law firm on your side to help you gain and keep the upper hand.

How can I protect myself from Black Friday injuries?

Black Friday, the number one shopping day of the year, can draw thousands of frantic shoppers to malls and other popular retail stores.  As you hunt for a parking spot and fight your way through the holiday crowds, you should remain aware of the possibility of injury.  The following is a look at some of the most common Black Friday accidents and how you can protect yourself.

1. Parking lot car accidents:  According to Farmers Insurance, the number of parking lot accidents increases 25 percent on Black Friday, when compared to an average Friday.  Black Friday leads to crowded parking lots and parking chaos.  If you are injured in a parking lot accident this holiday season, consult with a personal injury attorney to determine your legal rights.  To protect yourself against parking lot accidents, pay close attention when walking or driving.  Take children by the hand at all times and remain on alert.
2. Store slip and falls:  Customers fall in stores every day, and the risk of slipping while shopping increases on Black Friday due to the crowds as well as the sheer number of shops many people will visit.  Slip, trip, and fall accidents can occur due to slick floors, misplaced items, and other dangerous conditions.  Slip and fall cases can be quite difficult to prove, so contact an attorney if you have been injured right away.  Guard against slip and falls by wearing appropriate footwear and taking your time while walking.
3. Shopper vs. shopper injuries:  Every year, you hear about shoppers being injured by other shoppers.  Black Friday shoppers can be injured by trampling, jostling, and physical altercations.  If another shopper injures you, be sure to report the incident and file a claim.  At times, the store will be at least partially liable for the incident.  Consider protecting yourself from injury by avoiding shopping during the most crowded times of day. Seek the assistance of a security officer if you feel threatened by another shopper or need help to resolve an altercation.

Black Friday should be a fun time for holiday shopping.  In the event your Black Friday turns disastrous, contact a personal injury lawyer in your area for legal assistance.    

What are my legal rights if I am injured in an accident in Texas?

If you have been injured in an accident in Texas, there are several important laws and legal principles that could impact your personal injury case.  Understanding some basics about personal injury law in Texas can help you to protect your legal rights.  Our Houston, Texas personal injury lawyers at Chandler Mathis & Zivley offer the following overview of personal injury laws in our state.  

Statute of Limitations in Texas

All states set a limit on the amount of time you have to file a personal injury claim.  This deadline is known as the statute of limitations.  In Texas, the statute of limitations for personal injury claims is two years from the date of your injury.  This means that if you are injured in an accident involving negligence, you must file your action within two years or you could lose your right to bring the claim.  There are some exceptions to the statute of limitations, so consult with our office for specific questions about your case.

Modified Comparative Negligence

Texas has adopted the doctrine of modified comparative negligence.  Under this rule, may be able to bring a personal injury action even if you hold some degree of fault for the accident.  Your recovery will be reduced by your percentage of fault, and your claim is barred if you were more than 50 percent at fault for the accident.  

Damages in Texas

Injured plaintiffs in Texas may be able to collect damages for their medical expenses, lost wages, pain and suffering, loss of consortium, and more.  Texas does not cap damages in most personal injury actions, with two exceptions:  punitive damages and medical malpractice damages.  Punitive or exemplary damages are awarded only in select cases that involve gross negligence, fraud, and the like.  Punitive damages in Texas are capped at either $200,000 or $750,000, depending on the economic damages awarded by the jury.  Medical malpractice caps are complex and vary based on the type of damages.

These are just a few of the many legal principles that could impact your personal injury action in Texas.  For individualized assistance with your personal injury claim, contact our office as soon as possible.

What are the most common types of broken bones you could sustain in a car accident?

Millions of Americans will be involved in car accidents in the coming year.  Broken bones are one of the most common car accident injuries due to the immense force involved in the collision.  Fractures can be extremely painful and could even require surgery, potentially leading to lengthy recovery times and the inability to return to work.  Car accident victims who sustain a broken bone will require immediate treatment. Accident victims injured due to the negligence of another driver may be able to seek compensation for their fracture injuries through a personal injury lawsuit.  

What is a Fracture?

A fracture is defined as any break within any bone of the body.  Fractures vary in severity, with some simple fractures healing with relative ease, whereas compound fractures, which involve the broken bone piercing the skin, carry a risk of infection and longer recovery times.  Car accidents are a leading cause of broken bones, but fractures can also occur as a result of falls, sports injuries, and other high impact events.  

Common Types of Fractures

Car accidents inflict tremendous force on the body, creating the immense potential for broken bones, particularly in the following parts of the body:

1. Leg fractures:  There are three bones within your legs that could be broken in an accident.  The femur or thigh bone, is quite strong but could break in a serious car accident.  Femur breaks will have a long recovery time.  Your tibia and fibula are also at risk of injury if your vehicle crumples in the accident.
2. Facial fractures:  If you are ejected from the vehicle in an accident or your head hits the dash, there are several bones within your face that could break.  Facial fractures can lead to disfigurement.
3. Spine fractures:  The tiny vertebrae bones within your back could break in an accident.  When a vertebra breaks, it is extremely dangerous because it could damage the spinal cord, leading potentially to paralysis.

Car accident victims who sustain a broken bone in the collision should contact an experienced personal injury attorney as soon as possible after the crash to protect their legal rights.  

Q: Are there special laws that cover workers who are injured at sea?

On land, employees who are injured on the job are prohibited from suing their employers for damages but may collect certain compensation for medical expenses and lost income through Worker’s Compensation.

But employees injured in Off Shore accidents– such as fisherman, tugboat workers, and others–are covered under maritime accident laws, and some worker’s claims may also fall within the protection of the Jones Act.

Maritime and Offshore Accident lawyers with Jones Act experience are able to help those workers who work on or near the water recover much more than their onshore counterparts in the event they are injured at sea.

The Jones Act, also known as the Merchant Marine Act of 1920, applies to qualified “seamen” who are injured or become sick while working at sea. Unlike Workers’ Compensation, it allows injured workers to sue their employers for injuries that resulted from the negligence of the captain, crew, or vessel owners.

Jones Act claims are very complex –not every worker meets the qualifications of a “seaman” – and they require representation by personal injury attorneys with particular experience in this niche of maritime law.

Damages recoverable may include economic and non-economic losses like past and future medical expenses, lost income, diminished or lost earning capacity, pain and suffering, and even punitive damages, depending on the particular case.

Last year, a fatal tug accident occurred on the San Jacinto River just outside Houston, Texas. According to a National Transportation Safety Board (“NTSB”) Marine Accident Brief on the incident, the “probable cause’ for the capsizing and sinking of the uninspected tug vessel with a relief captain at the helm  was his decision to perform an “ill-advised ‘downstreaming’ maneuver without implementing the operating company’s risk mitigation strategies or other safeguards” in high water. The capsizing and sinking of the vessel, which caused the death of one of the five crew members, was captured on video.

“Downstreaming” maneuvers–where towing vessels go down river to land on another object like a barge or dock–present a “significant risk” of “rapid down flooding, capsizing and sinking” during certain river conditions such as the high water.at the time of the accident near Houston. The Coast Guard had reportedly issued advisories– which included restrictions on downstreaming– that were in effect at the time of the accident.

If you have suffered offshore injuries while working on a shipping vessel, boat, barge, tanker, yacht, fishing boat, or offshore oil rig,– or if you’re a non-covered worker who received an offshore injury – – the experienced maritime attorneys at Chandler Mathis and Zivley can help you obtain the compensation you deserve. Call us today at 877-739-7744 to schedule a consultation.

From our offices in Lufkin and Houston, we’ve been serving clients throughout Texas and nationwide for over 40 years.