Maryland Association for Justice

As the President-Elect of the Maryland Trial Lawyer's Association, I am proud to report that the Maryland Trial Lawyer's Association (MTLA) is now officially the Maryland Association for Justice (MAJ). The name change vote occurred last night (October 29, 2008) in Baltimore, Maryland. I stronly believe that the Maryland Association for Justice is a much better name for our organization because it describes what we do rather than who we are. I am extrememly proud to be a trial lawyer. But what we do, day in and day out, is fight for justice for our clients. We strive to keep families safe, and to protect access to the Courts. It is important that our organization's name describe what we do, rather than simply state who we are. As trial lawyers, our fight is on behalf of the "little guy" and it is typically against big insurance companies, big corporations, and powerful special interests.

I am also proud to report that MTLA (now the Maryland Association For Justice) was awarded the Best Project Award by the Maryland State Bar Association. This was for MTLA's School Project whereby our trial attorney members go into the various high schools throughout the State of Maryland and give presentations on the Civil Justice System. Louise Locke and David Wildberger are responsible for putting this incredible program together.

Potential Liability for Fairfax Apartment Complex

Assistant Property Manager Charged in Slaying at Apartment
By Mark Schofield

Gini Orange, a 29 year old Fairfax County woman who worked for the Futures Industry Association, was found murdered in her apartment on September 25, 2008. This is a horrible crime and an unspeakable act, and our thoughts and prayers are with her family at this dark hour.

Fairfax County police recently arrested Mark Lawlor, a 43 year old man who worked as an assistant property manager for the Prestwick Apartments, in connection with Ms. Orange's slaying.

According to published reports in The Washington Post, Lawlor was arrested in November of 1998 for breaking into a Great Falls, Virginia, home and abducting a former girlfriend. Court records raise the question of how and why this man was even employed in the first place by the apartment complex. According to the Washington Post, He pled guilty to the charges and was sentenced to six years in prison. He was released in 2004, yet sent back to jail twice for violating his probation, including arrests for drunken driving and cocaine use. Yet this apartment complex apparently saw it reasonable to employ this man as an assistant property manager, presumably with access to tenant's homes.

Police indicated that there was no sign of forced entry to Ms. Orange's home.

The apartment complex could face civil liability in connection with this horrible act. Liability for negligent hiring is predicated on the negligence of an employer in placing a person with known propensities, or propensities which should have been discovered by reasonable investigation, in an employment position in which, because of the circumstances of the employment, it should have been foreseeable that the hired individual posed a threat of injury or others. If media reports are accurate, then a quick search of court records by the apartment complex would have turned up the abduction arrest and jail time, as well as the subsequent jail stints for probation violations. The individual hired in this instance had a record of crimes under his belt which would give a prospective employer pause, especially the arrest and guilty plea to the abduction of an ex-girlfriend. The apartment complex should have taken steps to protect its tenants, and if it failed to do so, they may face civil liability and lawsuits for that failure. The statute of limitations for negligence actions in Virginia is two years. The Virginia Supreme Court discussed the tort of negligent hiring and has stated:

As we recently have stated, the cause of action for negligent hiring “is based on the principle that one who conducts an activity through employees is subject to liability for harm resulting from the employer's conduct if the employer is negligent in the hiring of an improper person in work involving an unreasonable risk of harm to others.” Southeast Apartments Mgmt. v. Jackman, 257 Va. 256, 260, 513 S.E.2d 395, 397 (1999).


"Liability for negligent hiring is based upon an employer's failure to exercise reasonable care in placing an individual with known propensities, or propensities that should have been discovered by reasonable investigation, in an employment position in which, due to the circumstances of the employment, it should have been foreseeable that the hired individual posed a threat of injury to others. Id. Mere proof of the failure to investigate a potential employee's background is not sufficient to establish an employer's liability for negligent hiring. Majorana v. Crown Cent. Petroleum, 260 Va. 521, 531, 539 S.E.2d 426, 431 (2000)."

Interim Personnel of Central Virginia, Inc. v. Messer 263 Va. 435, 440, 559 S.E.2d 704, 707 (Va.,2002.


This was a terrible accident, and legal representation is certainly not on the minds of the grieving family. However, it is crucial that the families of accident and crime victims retain experienced legal counsel to be sure that appropriate steps are taken so that the loved ones of those killed and injured receive fair compensation from anyone proven to be at fault in this accident. Our attorneys are certainly available to consult with families of accidents such as this one. We can be reached at 301-589-2999.

Medivac Helicopter Crash in Prince George's County, Maryland

I woke up this morning to the terrible news that a Medivac helicopter crashed last night in Forestville, Maryland killing 4 of the 5 people on board. The plane went down in Forestville, MD as it transported two accident victims from the scene of the accident to the hospital. The helicopter pilot, flight paramedic, emergency responder and one of the accident victims died. The medical helicopter is operated by the Maryland State Police. Our thoughts and prayers go out to the families of those killed in the crash. Emergency Responders such as paramedics and flight pilots are indeed, heroes who work hard every day, and put themselves at risk to help those injured in accidents, and it is just terrible that this happened.

Although legal representation is the last thing that the families of those killed and injured are thinking about, it is important that they retain experienced legal counsel immediately. Attorneys experienced in representing victims of airplane accidents will generally undertake an independent investigation of the cause of the crash (Quite often, the investigations conducted by the Federal Goverment are biased or incomplete), and monitor investigations conducted by Government officials. Evidence of any defective product that could lead to a product liability claim needs to be preserved. There are additional steps that need to be taken and considered to preserve the victims legal rights. For example, if there is a claim against the State of Maryland, notice needs to be provided under the Maryland Tort Claims Act to the State Treasurer within a year of the incident. If there is a claim against agents of any Local Government (e.g. Prince George's County), notice needs to be provided within 180 days. If surviving victims inted to make a workman's compensation claim, that generally needs to be made with the Worker's Compensation Commission within 60 days of the incident.

This was a terrible accident, and legal representation is certainly not on the forefront of the grieving families minds. However, in this era of tort reform, it is crucial that the families of accident victims retain experienced legal counsel to be sure that appropriate steps are taken so that the loved ones of those killed and injured receive fair compensation from anyone proven to be at fault in this accident. Our attorneys are certainly available to consult with families of accidents such as this one. We can be reached at 301-589-2999.

SLEEP RELATED CRASH PROMPTS FEDERAL CALL FOR ACTION

According to a Federal safety board, trucking companies should work harder to enforce that their drivers get rest, and the Federal government should move toward mandating the use of alarm systems to alert exhausted truckers. While drivers are ultimately responsible for getting enough rest, trucking companies and the government should also make the nation's roads safer by studying fledgling technology that would keep drivers alert, the National Transportation Safety Board (NTSB) said after a hearing conducted on Tuesday, September 16, in Washington, D.C.

The board hearing was held in response to an early-morning crash in western Wisconsin three years ago. In that crash, a bus carrying a high school band slammed into an overturned semitrailer, killing five people. NTSB investigators concluded that the truck driver fell asleep at the wheel and began to drift off the interstate's shoulder. When the truck driver swerved back onto the road, the rig overturned. Shortly later, the bus drove right into the overturned truck.

The crash occurred around 2 a.m. on Oct. 16, 2005, on Interstate 94 near Osseo, Wisconsin. The NTSB found that the brakes on the bus had not been properly maintained, but said that poor visibility meant the bus driver could not have avoided the rig even if the brakes were in ideal condition. The driver of the semi, Michael Kozlowski, of Schererville, Indiana, was not seriously hurt. Last year, a jury acquitted him of negligent homicide, causing great bodily harm by reckless driving and causing injury in the crash.

At the trial Kozlowski, through counsel, argued that he did not fall asleep. This argument was countered by NTSB investigators, who stated that said their research suggested Kozlowski did fall asleep. Onboard equipment indicated the truck left the road at a gradual angle without slowing, and witnesses reported seeing the truck drift, according to NTSB investigators. Kozlowski's lawyer, Daniel A. Haws, said the NTSB's arguments had been dismissed by the jury in the criminal trial. "The evidence they use to say he fell asleep, the jury heard the exact same thing and said they didn't believe it," he said.

Kozlowski was on a 430-mile trip to haul groceries for Whole Foods Market Group. The crash occurred after he traveled about 320 miles from Munster, Indiana, to St. Paul, Minnesota. Records show that Whole Foods gave Kozlowski sufficient time to rest between assignments, but the NTSB said Kozlowski had not filled in his log book as required for five days before the crash.

At the hearing, NTSB board member Debbie Hersman proposed that Whole Foods Market Group be asked to implement a comprehensive fatigue-education program for its drivers. The board approved the proposal. The NTSB also called upon the Federal Motor Carrier Safety Administration to step up enforcement of trucking companies, making sure their record-keeping is up to date and drivers are being given adequate time to rest.

The hearing covered other means of making the roads safer. Investigators debated the use of technology designed to warn of impending collisions and automatically engage the brakes. They discussed concerns that automatic braking could interfere with the stability of large rigs, so the board recommended that the National Highway Traffic Safety Administration study the technology and mandate its use if it proves effective.

An NTSB investigator also discussed technology that detects when a vehicle is veering from its lane and alerts the driver with a light or an alarm. Even low-tech measures are effective. The NTSB investigator said studies found that rumble strips on the road reduced drift-off crashes by up to 60 percent.

While the measures discussed at this hearing indicate that the National Transportation Safety Board is serious about making roads safer for passengers, the simple fact of the matter is that human error is almost always a factor, especially in severe accidents. In some of these cases, the human error that occurs is a result of the current trucking system, which itself is flawed. Trucking companies pay more to drivers who deliver their loads ahead of schedule, proving a financial incentive for drivers to cut corners to conserve time. Every day, thousands of truck drivers transport huge loads on America’s highways, and are entrusted to take due care to protect themselves and those around them. While most truckers adhere to their duty to fellow drivers in a professional and courteous manner, it only takes one to cause a serious, or even fatal, accident. If you or a loved one has been injured as a result of an accident with a tractor-trailer, call the attorneys at Goldberg, Finnegan & Mester, LLC at 301-589-2999 today for your free consultation.

Automobile Safety Group Seeks to Raise Driving Age

For most teenagers in America, obtaining a driver's license is considered a rite-of-passage, part of growing up and asserting their independence. However, if the Insurance Institute for Highway Safety has its way, states will raise the driving age from 16 to either 17 or 18. Adrian Lund, president of the Insurance Institute for Highway Safety, a research group funded by the auto insurance industry, acknowledged the idea is "a tough sell," but noted that car crashes are the leading cause of death among teenagers. "The bottom line is that when we look at the research, raising the driving age saves lives," Lund said. He plans to present the proposal Tuesday at the annual conference of the Governors Highway Safety Association in Scottsdale, Ariz.

According to an extensive study conducted by the Insurance Institute for Highway Safety, licensing at later ages would substantially reduce crashes involving teen drivers. The study states that this same conclusion has been reached in other countries. Teens in Great Britain and most Australian states can't get their licenses until they turn 17, for example. In most countries in the European Union the driving age is 18.

As part of their evidence in support of this idea, the Insurance Institute for Highway Safety points to New Jersey. Among US states, only New Jersey holds off licensure until age 17, and a recent analysis of the crash experience of young drivers indicates the benefits. A rate of 4.4 16-year-old drivers per 100,000 population were in fatal crashes during the study years, compared with 20.7 per 100,000 in neighboring Connecticut, where 16 year-olds could get licenses. The lower death rate in New Jersey was offset by a slightly higher rate at age 17 (32.3 versus 31.1 per 100,000), but the combined rate for 16 and 17 year-olds still was much lower than in Connecticut. These comparisons don't reflect the benefits of graduated licensing in either state because the study years, 1992-96, were before graduated systems began to be adopted in New Jersey (2001) or Connecticut (1997).

The Institute also examined eleven recent studies which looked into the effects of age and experience upon traffic crashed. According to their examination of these studies, the weight of evidence is that age and experience have important, independent effects on crash risk, even after differences in driving mileage are accounted for. The studies consistently found that teenage drivers had dramatically higher crash rates than older drivers, particularly drivers older than 25, after controlling for length of licensure. Studies that distinguished 16 year-olds found that crash rates for novice 16 year-olds were higher than rates for novice 17 year-olds, but crash rates for novice 17 year-olds were not consistently higher than rates for novice 18-19 year-olds. With regard to experience, the weight of evidence suggests a steep learning curve among drivers of all ages, particularly teenagers, and strong benefits from longer licensure. Of the studies that attempted to quantify the relative importance of age and experience factors, most found a more powerful effect from length of licensure. The findings lend support to delaying licensure among teenagers in the United States, where licensure commonly is allowed at age 16, and to graduated licensing systems that phase in unsupervised driving during high-risk situations as teenagers gain independent driving experience.

Safe driving is a civic responsibility, and all drivers, regardless of age, owe their fellow drivers the care and attention commensurate with that responsibility. According to the World Health Organization, not only do 3000 people die on the world's roads every day, but tens of millions of individuals are injured or disabled each year as a result of traffic accidents. When it comes to reducing traffic injuries or fatalities, every option should be on the table. If you or a loved one has been injured as a result of a traffic incident, call the attorneys at Goldberg, Finnegan & Mester at 301-589-2999 today for your free consultation.

Mark A. Schofield, Esquire

GOVERNMENT BACKED VEHICLE SAFETY DATABASE NOW OPERATIONAL

Thanks to a ruling by a federal court on Wednesday, an extensive database related to vehicle safety is now online. The government has unveiled a new public database that will allow consumers to look up the number of alleged deaths, injuries and cases of property damage involving passenger vehicles, which consumer groups have sought for years. This database is part of legislation passed by Congress following the massive recall of defective Firestone tires in 2000. This legislation required manufacturers to provide data on complaints of deaths, injuries, property damage and warranty claims.

Located at http://www.safercar.gov, the website contains a wealth of information related to vehicle safety. We urge you to check it out before you purchase a new car and even to check for problems with your current vehicle. The site contains four informative sections related to keeping a driver and a driver's vehicle safe, with particular information relating to tires, air bags, rollover prevention, and the relative safety of 15 passenger vans, a topic previously discussed on our blog. Safercar.gov also contains the latest crash safety test ratings on vehicles dating back to 1990, so those individuals looking to purchase a new or used vehicle can examine the safety components of each make and model of interest. The website further allows users to scan through all current and recent safety defects and recalls. In all, the website, while in its formative stages, provides a wealth of knowledge with respect to vehicle and driver safety. We also suggest that you have any new or soon-to-be first time drivers in your household review these safety sections.

Of course, the automotive industry is still withholding additional information about which consumers should know. Volumes of additional data from tire companies and other suppliers remain confidential pending completion of a regulatory review of whether to honor close to 100 requests by individual companies to keep their information confidential. In addition, other information from all sources, including warranty claims, consumer complaints, and field reports, will remain confidential indefinitely, officials said. So while some hurdles still remain to be cleared before this resource can reach its full potential for providing safety information to American drivers, at present the site still provides a wealth of knowledge for its users.

Examining the website also serves as a reminder that thousands of Americans are involved in traffic incidents each and every day, often suffering severe injuries. In many cases, those injuries occur through no fault of their own. While the resources afforded by safercar.gov may help consumers takes steps to further protect themselves, consumers can do little to prevent suffering an injury at the hands of a negligent driver, or a defective vehicle or tire. If you or a loved one has been injured in a traffic incident, call the attorneys at Goldberg, Finnegan & Mester today at 301-589-2999 today for your free consultation.

COMPANIES WORK TO AVOID LIABILITY WHEN MERGING

A recent recall of children’s furniture has highlighted the efforts that companies go through during mergers to protect themselves from being held accountable when they injure someone. When Blackstreet Capital Management (specifically its affiliate SFCA) purchased the assets of Simplicity for Children, a manufacturer of children’s furniture, the deal was structured so SFCA would not assume responsibility for products already on the market should they injure someone or be deemed defective. In April, SFCA bought Simplicity’s assets at an auction, fully aware of a recall of over 1 million cribs, but believing they would not have any accountability for injuries. Late last week, however, the Consumer Product Safety Commission directed stores to pull Simplicity bassinets from their shelves after the deaths of two infants. SFCA refused, arguing that while it had the right to sell products under the Simplicity brand, it did not assume the liability of products already on the market.

This scenario, commonly referred to as “successor liability,” is an issue that attorneys and injured consumers often face due to the complexities of a changing economy. The SFCA issue mirrors a case decided by the Maryland Court of Appeals (Maryland’s highest appellate court) in 1990. In that case, Nissen Corporation v. Miller, the Maryland Court of Appeals faced the issue of whether a person injured by a treadmill could recover against the company which purchased the original manufacturer of the treadmill. In January of 1981, Frederick B. Brandt purchased from Atlantic Fitness Products a treadmill which was designed, manufactured and marketed by American Tredex Corporation. Later in 1981, Nissen Corporation entered into an asset purchase agreement with American Tredex, under which Nissen purchased the trade name, patents, inventory and other assets of American Tredex. Nissen also assumed some of American Tredex’s obligations and liabilities, but the contract expressly excluded assumption of liability for injuries arising from any product previously sold by American Tredex.

Five years later in 1986, Mr. Brandt was injured while trying to adjust the running treadmill. More than a year later, American Tredex was administratively dissolved. Mr. Brandt and his wife filed suit on September 1, 1988, against American Tredex and Nissen, as well as AT Corporation and Atlantic Fitness Products. (AT Corporation was a second name for American Tredex).

The Maryland Court of Appeals faced the issue of whether the Court should adopt in Maryland a general rule of “nonliability of successor corporations.” In its ruling, the Court held that a corporation which acquires all or part of the assets of another corporation does not acquire liabilities and debts of the predecessor unless there is one of four exceptions: Express or implied agreement to assume such liabilities; the transaction amounts to consolidation or merger; successor company is a continuation or reincarnation of the previous company, or the transaction was fraudulent. The Court in Nissen held that since Nissen purchased assets of American Tredex under a contract that expressly excluded the assumption of liability for injuries arising from any product previously sold by manufacturer, therefore Nissen was not liable for any injury caused by the treadmill.

According to an article in the Washington Post discussing the SFCA recall:

Traditionally, only mergers result in one company taking on the liability of another, said Alan O. Sykes, a professor at Stanford Law School. A major benefit of buying assets is that no liabilities are incurred. “When a company is bankrupt and sells off its old factory and stuff, the people who buy those assets in those sorts of asset sales are not liable,” Sykes said.

According to SFCA, since the assets of Simplicity were purchased in a foreclosure sale, SFCA “did not assume directly or indirectly liabilities associated with Simplicity.”

In the end, it is you, the consumer, who is injured. These are just a few more examples of how companies work to protect their bottom lines, often at the expense of consumer safety. In the SFCA example, a company is resisting a call from the Consumer Product Safety Commission to recall baby bassinets, knowing full well that the product has caused the deaths of two infants. Its’ reasoning? A legal technicality that states SFCA may not be liable for any injuries that result. Every day, companies work to increase their bottom line, and this is yet another example. Defective products shown to cause the death of infants will remain on the market, and continue to be sold, due to this technicality. Yet every day, the attorneys at Goldberg, Finnegan & Mester, LLC work on behalf of consumers injured by faulty and/or defective products. If you or a loved one has been injured as the result of a defective product, call the attorneys at Goldberg, Finnegan & Mester, LLC at 301-589-2999 extension 102 for a free consultation.

NEW ENGLAND JOURNAL OF MEDICINE ARGUES THAT LAWSUITS CAN HELP GUARANTEE DOCTOR SAFETY

In a case pending before the Supreme Court of the United States, the editors of the New England Journal of Medicine (NEJM) filed an amicus, or “friend-of-the-court,” brief to assist the members of the Court in reaching their decision. In their brief, the editors argue that the United States Food and Drug Administration (FDA) is in “no position” to guarantee drug safety, and that lawsuits can serve as “a vital deterrent” and to “protect consumers” if drug companies fail to disclose risks associated with their products.

The case currently pending before the Supreme Court is Wyeth v. Diana Levine. In this case, Diana Levine, a guitarist, lost her right arm below the elbow after she was injected with Phenergan, a medicine for nausea. The injection caused gangrene in her arm. Ms. Levine sued the manufacturer of Phenergan, Wythe, arguing that Wythe owed a duty to warn consumers that such injections could have horrible effects. After a trial court in Vermont rendered a verdict of $7 million dollars in her favor, Wythe appealed. The basis of Wythe’s appeal is that the company is protected from lawsuits because of the role of the FDA. According to Wythe, the FDA was aware of the risks associated with Phenergan, yet chose not to require a warning on the drug’s prescribing label as a guide for doctors.

The NEJM editors filed their amicus brief on August 14, 2008, with the assistance of Public Justice, an organization of trial attorneys serving to protect the rights of individuals. The brief focuses on two basic reasons why Wythe’s position is flawed. First, they argue that the FDA lacks sufficient information and resources to serve as the sole monitor of pharmaceutical risks. The authors stress that for the FDA to properly strike the balance between safety and efficacy, they must be privy to all pertinent information regarding the benefits and risks of all prescription drugs. Given that 11,000 FDA-regulated drugs are currently on the market, and roughly 100 are approved each year, it is physically impossible for the FDA to complete this task. Further, the FDA conducts no independent testing, and the information it relies upon is provided by the party most interested in bringing a prospective drug to market – the manufacturer. Second, the authors outline that the FDA’s limitations are illustrated by the numerous drugs that were withdrawn from the market for safety concerns, after their initial warnings proved inadequate. Such drugs include Vioxx, Trasylol and Redux.

Next, the editors argue that Wythe’s position that federal law “pre-empts” state law, is flawed in two respects. First, Wythe argues that there is a risk of “over-warning” if the FDA is not considered the sole body responsible for determining risks associated with pharmaceuticals, and that drug manufacturers will be “punished” by the DFA adding unnecessary warnings in response to failure-to-warn lawsuits. Wythe takes this position despite a single example of such an occurrence in the seventy years of drug regulation by the FDA. Further, the warnings are designed and directed to a sophisticated physician, who is then required to wade through the labels and comprehend the risks. Therefore, any “over-warning” simply provides the medical professional with additional necessary information prior to prescribing the medication. Second, the NEJM editors argue that Wythe’s position is simply a general indictment of the general product liability system.

The NEJM editors conclude that under the current regulatory structure, a “robust tort system” is required to effectively monitor the risks associated with pharmaceuticals. According to the brief, “[p]roduct liability lawsuits and the FDA have peacefully coexisted for seventy years for one simple reason: they have complementary, rather than conflicting, goals. The tort system complements the federal regulatory structure by providing a mechanism for compensating victims of hazardous drugs. Product liability litigation provides the FDA with key information unearth in litigation that the agency can use to better protect the public from unsafe and inadequately labeled drugs.” The editors argue that the various tools provided through the court system and litigation, such as subpoena power, the discovery process and tort liability, work to provide the FDA with additional information while protecting the American public.

What is clear is that if the pharmaceutical industry had its way, the American public would be its guinea pigs for dangerous drugs and products and they would never be held accountable – all the while raking in billions of dollars of profits. This current Supreme Court cases is just one of many examples of how trial attorneys fight every day for individuals – and how the NEJM, a medical publication, is working with the trial lawyers on this issue. The work of trial attorneys on a daily basis is designed to protect all individuals, both in the present and in the future, from harm caused by dangerous products, drugs, and other dangerous situations. Trial lawyers fight not only so their current clients are reasonably compensated for their injuries, but also to ensure that other individuals are not harmed by the same situation in the future. If you or a loved one has been injured as a result of a harmful product or drug, call the attorneys at Goldberg, Finnegan & Mester, LLC at 301-589-2999 extension 102 today for your free consultation.

Mark A. Schofield, Esquire

Tort-Liability for Patient Caused Accidents

A recent article in the New England Journal of Medicine highlights the growing controversy over a doctor’s liability in tort for a motor vehicle accident caused by one of the doctor’s patients. The article, written by George J. Annas, J.D., M.P.H., tries to address the question of whether a doctor owes a duty of care to individuals who may be harmed when a patient under the doctor’s care ingests a prescribed medication and attempts to operate a motor vehicle.

The article opens with disturbing numbers from a study conducted by the Centers for Disease Control and Prevention. According to a study conducted by this organization in West Virginia, there is a higher prevalence of prescription medication than illegal drugs in the blood of fatally injured drivers. Further, in over seven percent of all fatalities, and in nine percent of fatalities in drivers involved in motor vehicle accidents, blood samples contained two or more of five commonly prescribed drugs.

With this study as a backdrop, Annas analyzes a case decided in Massachusetts, in the matter of Coombes v. Florio. In this case, a doctor was treating a 72 year old man for a variety of conditions, including asbestosis, chronic bronchitis, emphysema, high blookd pressure, and metastatic lung cancer. During the first year of the treatment, the doctor advised his patient that it would not be safe to drive during cancer treatment, advice the patient heeded.

Once the treatment was concluded, the patient returned to the road. Months later, the patient was driving his car when he lost consciousness and struck a ten year old boy, killing the child. At the time of the incident, the patient was in possession of prescriptions for oxycodone, metolazone, prednisone, tamsulosin, potassium, Paxil, oxazepam and furosemide from his treating doctor. Possible side effects for these medications include drowsiness, dizziness, lightheadedness, fainting, altered consciousness, and sedation. These side effects, including any impairment they may cause behind the wheel, were not discussed between doctor and patient.

The mother of the young child brought suit against both the driver and his doctor. A trial court dismissed the suit, and it came up to the Massachusetts Supreme Court for review. The Supreme Court of Massachusetts, through a plurality decision, reversed the trial court. The judge issuing the plurality opinion noted that this was not a medical malpractice decision, but rather an ordinary negligence issue. Therefore, the issues to be decided were: Did the doctor owe a duty to the injured boy? Was that duty breached, and if so, did the breach cause the boy harm?

The plurality opinion cited numerous examples of similar situation to demonstrate that negligence could be found on the part of the doctor. Consider the liquor store held liable for a bicyclist’s injuries, when a bicyclist is injured by an intoxicated minor operating a vehicle after purchasing liquor from the store. Consider also the homeowner held liable for failing to store a gun properly, later used by the homeowner’s son in the killing of a police officer. As the Court stated: “Relying on these same principles, I conclude that a physician owes a duty of reasonable care to everyone foreseeably put at risk by his failure to warn of the side effects of his treatment of a patient.”

As to the issue of whether the accident was “foreseeable,” the court held that since the medications had known potential side effects which “were likely to impair a motorist,” that fact coupled with the prior advice that the patient could resume driving made it all the more foreseeable that such an accident could occur.

This case does not settle the issue, and courts in this area have not addressed this issue. The Massachusetts case should inform attorneys and individuals that the potential for such liability, and the dangers that arise when consuming prescription medication, do exist. If you are currently under the care of a doctor and taking prescription medication, make sure you speak with your doctor about all potential side effects and risks. Further, if you or a loved one has been injured in a motor vehicle accident, contact one of the attorneys at Goldberg, Finnegan & Mester, LLC at 301-589-2999 extension 102 for your free consultation today.

Mark A. Schofield, Esquire
Goldberg, Finnegan & Mester, LLC

Taking a Road Trip? Recent Studies Suggest Safety First

August in the Washington Capital Region is often the hottest time of the year weather-wise. There’s a little known fact that decades ago, foreign countries paid their diplomats who were stationed here in Washington hazard pay because of the oppressive heat. Perhaps that is the reason that the area seems to empty during the month, as families head to area beaches or tourist destinations for a few weeks of rest and relaxation before school begins in the fall. However, three recent studies from the National Highway Traffic Safety Administration suggest that road travelers take caution as they head out of town.

One study focuses on 15-passenger vans. Statistics show that June through August are the deadliest time of the year for those vehicles and their occupants. More than 30 percent of fatal rollovers involving these vehicles occur during the busy summer travel months. Further, the risks increase when the van is fully loaded with drivers and passengers. In 2006, 50 percent of occupant fatalities that occurred in these vans took place when the van was fully loaded.

Other factors that contribute to rollover incidents include improperly inflated tires, poor tire conditions, and inexperienced drivers.

Another study from the NHTSA indicates that unfortunately, traffic accidents are the leading cause of death for every age 3 through 6 and 8 through 34. According to the study, motor vehicle traffic crashes ranked third overall in terms of the years of life lost (i.e., the number of remaining years that the person is expected to live had they not died) behind only cancer and diseases of the heart.

The final study, released by the NHTSA on August 5, 2008, analyzed the ratio of motor vehicle crash fatalities by sex and age from 1996 to 2006. The study indicated that motor vehicle crash fatalities where higher for males than females in all age groups, even though the male population is equal to or less than the female population in all age groups. The study also found that while fatality rates for most age and sex groups decreased, the fatality rates increased only among males in the age groups 41-45, 46-50 and 51-55.

These studies indicate the continued hazards and risks associated with traveling our nation’s highways. Please take due care and caution when taking your summer road trips and we wish you a happy and safe time. However, if you or a loved one has been injured in an automobile accident, please contact one of the attorneys at Goldberg, Finnegan & Mester, LLC today at (301)589-2999 x102 for a free consultation.

Mark A. Schofield, Esquire
Goldberg, Finnegan & Mester, LLC

Is That Truck Safe?

According to a recent safety study, hundreds of thousands of tractor-trailer and bus drivers in the United States carry commercial driver’s licenses, despite having qualified for full federal disability payments. In addition, some of these drivers have suffered seizures, heart attacks or unconscious spells. The Federal Motor Carrier Safety Administration, the agency responsible for oversight of commercial vehicle operation in the United States, acknowledges that it has failed to implement any of the eight recommendations that safety regulators have proposed since 2001. These proposals include minimum standards for officials who determine whether truckers are medically safe to drive, and would stop truckers form “doctor shopping” to find a physician who would overlook a risky health condition and certify that a trucker was safe and fit to drive.

Our firm has represented severely injured victims of truck driver negligence in Maryland, Virginia and the District of Columbia. In one particular case, the truck driver made an unsafe lane change and forced our client’s vehicle off of Interstate 95 and into a barrier wall. Our client suffered severe brain damage and eventually died as a result of this crash. Our investigation revealed that the truck driver was, for all intents and purposes, deaf and could barely hear. The driver also had been involved in several prior accidents. Despite his physical impairments, he obtained a medical certification to operate a commercial vehicle. Unfortunately, our firm has seen a pattern of truck companies putting corporate profits over the safety of other drivers.

According to the U.S. Department of Transportation, 5,300 people were killed in crashes involving large commercial trucks or buses in 2006, the latest year for which data is available. Further, about 126,000 people were injured in 2006 in such accidents.

A 30 page study from the Government Accountability Office, released this week, investigated unfit truck drivers. According to the results, 563,000 commercial drivers were determined by the Veterans Affairs Department, Labor Department or Social Security Administration to be eligible for full disability benefits over serious health issues. While eligibility for disability benefits does not always mean a driver is unfit to operate a commercial vehicle, the GAO study found serious and alarming examples. More than 1,000 drivers were identified with vision, hearing or seizure disorders which would generally prohibit a trucker from obtaining a commercial driver’s license.

Tractor Trailers (18 wheelers) are extremely dangerous motor vehicles, especially in the hands of an unfit driver. While governmental organizations and agencies try to ensure that only those medically fit are behind the wheel of such vehicles, often a driver is not caught before a serious accident takes place. The attorneys at Goldberg, Finnegan & Mester, LLC, work with victims of such incidents on a daily basis, fighting for their full rights and benefits under the law. If you or a loved one has been injured in an accident involving a tractor-trailer or bus, call us today at (301)589-2999 x102 for a free consultation.

Mark A. Schofield, Esquire
Goldberg, Finnegan & Mester, LLC

Double-Decker Buses in DC Fraught with Peril

A recent horrific accident has shed new light on the perils of open-air, double-decker buses. Two weeks ago in Washington D.C., two young men were headed to the new Nationals Stadium to watch the Washington Nationals host the Houston Astros. Unfortunately, the bus they were traveling to the game on never made it. Two men were killed when their heads struck a freeway overpass while on the upper deck of a bus headed to the game, according to District of Columbia police.

Because of parking concerns near the stadium, the Washington Nationals provide free shuttle service from RFK Stadium to the new stadium, located along the Anacostia River and near the Navy Yard Metrorail stop. At this time, it is unclear if this bus was part of this service, called the "Nats Express," or was another private organization providing transportation services. Buses that are part of the "Nats Express" are typically standard coach buses, not double-decker, open-air buses like the vehicle involved in last night's fatal incident. According to ABC 7/NewsChannel 8 Horace Holmes, the bus was headed to Nationals Stadium from RFK. The bus was carrying around 6 people who were on a company outing, Holmes reported.

The incident occurred about 8:45 p.m., as the open-topped double-decker bus, which was westbound on the Southeast Freeway, passed beneath the 11th Street overpass. "They were standing in the upper part of the bus, and their heads struck the under part of the overpass," said Commander Andy Solberg, field supervisor for the police.

After the men were injured, other passengers apparently alerted the driver of the bus, who stopped at Ninth and I streets SE, near the Marine Barracks. Gunnery Sergeant Will Price, a public affairs representative at the barracks, said witnesses described a horrific scene. He said one of the bus passengers had administered first aid before Marines and rescue workers arrived. "It's the most serious thing I've seen in my three years here," Price said.

A recent Washington Post story illustrated the dangers associated with these buses. An article published July 18, 2008 noted that many riders on scenic, open-air bus tours of Washington D.C. are forced to duck and dodge low hanging branches during their trips. The Washington Post article also indicated that sometimes, the announcements made by the bus drivers regarding the vehicle height do not correspond with the vehicle's actual height. Patrons are warned about the dangers of standing during the ride.

Incidents such as this one are horrible to hear about. It is a shame when a young life is cut short, especially when under such tragic circumstances. The attorneys at Goldberg, Finnegan & Mester fight on a daily basis to make sure that companies and organizations do everything they can to ensure the safety of their passengers and patrons.

Mark A. Schofield, Esquire
Goldberg, Finnegan & Mester, LLC
(301) 589-2999 extension 123

Florida Newspaper Finds that Mandatory Arbitration Clauses Further Injure Victims of Medical Negligence

You have seen it before: your doctor will not treat you unless you agree to sign a document that says if your doctor commits malpractice on you, you cannot sue her, but must use an arbiter picked by your doctor. There is nothing fair about it, but do you sign it? An article in the Tampa Tribune called this new tactic by the doctors in their continued fight for tort reform exactly what it is: blackmail.
An arbitration requirement requires you to give up your constitutional right to file a lawsuit and instead only allows you to pursue a claim with an arbiter, who is not a judge and is hired and/or chosen by the doctor who injured you. The article cited research that shows that these arbitration proceedings are not fair to the victim and, in fact, are skewed highly in favor of the doctor. “The outcomes are pre-cooked when you agree to a particular set of rules or arbiters.” The article concludes that big business and the medical profession are essentially growing a new system of justice and that the public deserves to know that arbitration is unfair and improper when used in this fashion.
Why are big business and the medical profession requiring mandatory arbitration? Simply, it is because of their continued tort reform efforts to take away your rights and to avoid responsibility for their actions. These entities and individuals will stop at nothing to maximize their profits and care nothing about stripping you of your rights. We at Goldberg, Finnegan & Mester, LLC fight for you and for the rights of those injured by someone else’s negligence. We stand up for you and your family against those who stand in the way of justice and we never back down. Whether it is the newborn baby who would be normal except for the negligence of the hospital and doctors, and now has brain damage and cerebral palsy requiring a lifetime of care, or your loved one who was misdiagnosed because the radiologist did not read the film correctly and now it is too late to save him, we fight tirelessly for you.
The text of the article can be found at http://www2.tbo.com/content/2008/jun/01/bz-new-hello-in-health-care-sign-here-not-to-sue/

Christian Mester
Goldberg, Finnegan & Mester, LLC
(301) 589-2999 extension 125

If you or a loved one have been injured, make sure you are aware of your rights. Contact the lawyers at Goldberg, Finnegan & Mester, LLC toll free at 1-888-213-8140 for a free initial consultation.

Yamaha Rhino Rollover Accident

In recent months, many people have been seriously injured in rollover accidents on Yamaha Rhino UTV's. Many models of the Rhino do not have doors and they tend to roll causing serious injuries and even death. Finally, in August 2007 Yamaha redesigned the Rhino and some of the later models do indeed have doors. Yamaha sent a letter to Rhino owners in September 2006 warning owners of the possibility of rollover accidents. The most common injury is a broken leg. What happens is that as the Rhino is rolling over, the occupant puts his leg out to stop the roll, and the roll crushes the leg causing broken bones and other severe injuries.

If you have been injured on a Yamaha Rhino, call us today at 888-213-8140 for a free phone consultation.

Another Legal Myth Debunked: Physicians Fleeing from Medicine is Untrue

You have heard these mistruths put out by the insurance industry and the medical associations time and time again: physicians are leaving the practice of medicine because of the increasing malpractice premiums due to frivolous lawsuits. A recent study, using the raw data from the American Medical Association (AMA) itself, actually confirms what has been known all along by protectors of the civil justice system: that physicians are not leaving the practice of medicine. This is just further confirmation that big business, the insurance industry and the medical profession want to take away your right to obtain fair and reasonable compensation in medical negligence claims by using scare tactics.

The analysis compared data for 2006 (the most recent year for which data is available). Some key findings:
* The number of doctors is increasing across the country and rose in every state except Louisiana (which had a total decrease of 7 doctors). There were 921,904 physicians in the United States in 2006, nearly 20,000 more than in 2005.
* The number of doctors is increasing faster than population growth.
* State doctors-per-capita rates outpace population growth.
* The number of physicians per 100,000 state residents is much higher in states without caps on non-economic damages.

(All figures were derived from the American Medical Association’s own numbers (Physician Characteristics and Distribution in the U.S., Various Editions)).

The main reason the insurance industry and medical profession use these scare tactics is because of their continued efforts to get unfair and unconstitutional tort reform measures passed. What all of this clearly shows, however, is that these entities and individuals will stop at nothing to maximize their profits and care nothing about stripping you of your rights. We at Goldberg, Finnegan & Mester, LLC fight for you and for the rights of those injured by someone else’s negligence. We stand up for you and your family against those who stand in the way of justice and we never back down. Whether it is the newborn baby who would be normal except for the negligence of the hospital and doctors, and now has brain damage and cerebral palsy requiring a lifetime of care, or your loved one who was misdiagnosed because the radiologist did not read the film correctly and now it is too late to save him, we fight tirelessly for you.

Christian Mester
Goldberg, Finnegan & Mester, LLC
(301) 589-2999 extension 125

If you or a loved one have been injured, make sure you are aware of your rights. Contact the lawyers at Goldberg, Finnegan & Mester, LLC toll free at 1-888-213-8140 for a free initial consultation.

Prince George's County, Maryland Jury Awards Shooting Victim $2.4 Million

By Kevin I. Goldberg

A Prince George's County, Maryland civil jury recently returned a verdict in the amount of $2.4 Million for Devon Shaw. The man was shot and injured by a P.G. County--Prince George's County-- police officer on New Years Day 2006. The police officer Defendant defended himself by arguing that he shot Mr. Shaw because he thought that Mr. Shaw was holding a gun. Mr. Shaw claimed he never had a gun. The officer shot Mr. Saw five times.

The jury award will likely be reduced because of Maryland's cap on non-economic damages, and because of the local government tort claims act which caps cases against Maryland Counties such as Prince George's County at $200,000.00.

Victims of police misconduct and police brutality have recourse in the legal system. If you or someone you know is seriously injured or wounded by the police or by other government officials, call Goldberg, Finnegan & Mester for a free telephone consultation at 301-589-2999 x102.

The victim's lawyer obvioulsy avoided pleading federal civil rights violations in order to keep the case in the Circuit Court for Prince George's County. Federal Judges and Federal juries in Maryland are much less likely to look favorably on this kind of case compared to the Circuit Court for Prince George's County. Attorneys can avoid having police brutality cases removed to federal court by pleading only state law causes of actions such as assault, battery, and negligence---rather than pleading federal civil rights violations.

Supreme Court Unfairly Favors Big Business Over Citizens

By Mark Schofield

On August 29, 2005, Hurricane Katrina made landfall along the American Gulf Coast. Over the days that followed, Americans viewed images of homes being destroyed, and lives being severely altered, as Mother Nature unleashed her wrath in Louisiana and Mississippi. As many as 1,836 people lost their lives as a result of Hurricane Katrina and the subsequent floods, making that storm the deadliest United States hurricane since 1928. The storm also caused an estimated $81.2 billion dollars in damage.

In the months following Hurricane Katrina, residents of the Gulf Coast were subject to severe hardships. Many who had lost their homes in the disaster either relocated, or stayed behind to try and reassemble their homes, and their lives. However, many soon found that their own insurance companies would only add to their burdens, by denying claims made under homeowner’s insurance policies. According to these insurance companies, even if homeowners had purchased policies that included coverage for hurricanes, the damage to their homes was actually caused by flooding. Therefore, the insurance adjusters reasoned, unless a homeowner had purchased flood insurance, which is a separate insurance often not provided for in homeowner’s insurance policies, losses would not be covered.

Xavier University, along with a number of individual homeowners, challenged that line of thinking in a Louisiana State Court. Despite those exclusions in their policies regarding flooding, these individuals and Xavier University advanced the argument that the flooding was caused by the negligent design and maintenance of the levees in and around New Orleans.
Negligence that anyone who watched Hurricane Katrina unfold live on television could see. These Plaintiffs argued that their policies do not exclude coverage for an inundation of water caused by negligence.

Today, the United States Supreme Court declined to hear the case, effectively ending the chances these Plaintiffs will ever recover for their losses that resulted from Hurricane Katrina.

It is true that insurance companies are businesses, and that they are in the business of making profits. However, Hurricane Katrina was a natural disaster unlike any this country had seen in almost 100 years. Thousands of individuals lost their lives, and billions of dollars in damage resulted. Yet in the end, individual homeowners are left holding the bag, as insurance companies walk away, leaving their policyholders behind.

Sadly, this is one of thousands of examples of insurance companies putting their profits over the interests of their policy holders. Every day in this country, an individual learns the hard way what the Plaintiffs in this case have learned: Insurance companies are looking out for their bottom line. State Farm is not often a good neighbor. You are not necessarily in good hands with Allstate.

It is stories like this that drive the attorneys at Goldberg, Finnegan & Mester to stand up for those individuals in their fights against insurance companies, be it the insurance company that denies an automobile accident claim, the insurance company that denies medical coverage or coverage for medical negligence, or the insurance company that denies coverage for the loss of a home or business (homeowner's insurance claims). If you have been injured and are trying to fight an insurance company, don’t do so on your own. Contact one of the
attorneys here at Goldberg, Finnegan & Mester for a free phone consultation.
information is intended to be for the sole use of the individual or entity named above. If you are not the intended recipient, be aware that any disclosure, copying, distribution or other use of the contents of this transmission is strictly prohibited. If you have received this electronic mail transmission in error, please notify us by telephone at (301) 589-2999 or by electronic mail to cmester@gfmlawllc.com immediately.

Insurance Companies Underpay Auto Claims and Overcharge Customers

By Mark Schofield
Attorney at Law

One of the reasons we practice the type of law that we do is because the insurance industry is only out to protect its selfish interests over anything else, including the public at large, consumers, and companies. We have long known that the insurance industry and big business put their own profits above their customers, and now independent research is confirming the despicable lengths to which the insurance industry will go to make a profit. Don’t get us wrong: we believe that a business should be profitable, but not at the expense of your customers and not when done in bad faith.

According to a recent study published by the Consumer Federation of America in corroboration with the Consumers Union and several other consumer organizations, their research found that in order to increase profits and protect their “bottom line,” United States insurance companies overcharge their customers and underpay both home and automobile claims. The study, released this week by the Consumer Federation of America, found that the insurance industry’s overcharges reached an average of $870.00 per United States household over the last four years.

According to J. Robert Hunter, the insurance director for the Consumer Federation of America, insurance companies have enjoyed record profits, while minimizing losses, by “methodically overcharging customers, cutting back on coverage, underpaying claims and getting taxpayers to pick up some of to the tab for risks the insurers should cover.” The study, based on the insurance industry’s own data and financial reports, estimates that the insurance industry’s net income after taxes in 2007 will be $65 billion dollars, a small decrease from the previous record of $67.6 billion set in 2006, but still a large jump over the 2005 net income of $48.8 billion.

An examination of the full report, available online at: http://www.consumerfed.org/pdfs/2008_INSURANCE_RELEASE_FINAL.pdf and indicates a number of startling facts about the recent success of the insurance industry:

• The insurance industry enjoyed record profits in 2004 and 2005, despite significant hurricane activity.
• In recent years, insurers have sharply increased premiums for homeowners and commercial insurance policies, while reducing or eliminating coverage for thousands of Americans in costal areas.
• Insurers are seeking additional subsidies from Congress for catastrophe insurance.
• Consumers have experienced a drastic drop in the amount of claims payouts.
• In the past five years, the insurance industry has enjoyed record level profits, and record low losses. Consider that the industry’s net income (post-tax) in 2003 was $31.2 billion dollars. In less than five years, this number has more than doubled to $65 billion dollars.

As always, consumers need to remember that despite what they see in the news, and on television commercials, insurance companies (even their own insurance companies that claim to be looking out for them) are companies in the business of making a profit: given that the insurance industry is experiencing record profits, it is clear that these companies are making these profits at the expense of their individual consumers, as well as at the expense of those who dare make a claim for insurance after an accident, injury or loss.

Insurance companies will fight to protect their profits, and their bottom line and do not care who gets in their way. Consumers and those with claims against these insurance companies need someone in their corner, fighting for their rights. The attorneys at Goldberg, Finnegan and Mester fight insurance companies on a daily basis for the rights of the individuals we represent.