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