Memphis Injury Lawyer Blog

Last week we reported exploding fitness balls. Now, Tennessee residents and all of the Mid-South should be aware of an exploding coffee maker.Philips Senseo One-Cup Coffeemakers have been recalled due to several reports of mineral buildup in the unit which has caused them to explode. Needless to say the burn risk is high not to mention the effect that such an event can have on the consumer's confidence in our products.

But, are they "our products"? While Phillips distributes these electronic devices, can you guess where they were made? Do China and Poland ring any bells? It should as the exploding fitness balls and many other products that have been discovered as being dangerous or defective have come to us from China. Remember the adulterated infant formula? The price range and sellers were Wal-Mart, Target and Safeway stores nationwide and online at Amazon.com between July 2006 through March 2009 for between $60 and $140.

In the event that you are working out on a fitness ball and brewing a cup of coffee, stop immediately! While no events have been reported yet in the United States. The firm has received 17 reports of incidents in Europe, including six reports of minor personal injury involving first degree burns to the hands, arms and abdomen. If you fit this profile, please consult an attorney who can protect your rights and your future.

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Posted In: Dangerous Products

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Tennessee residents and those of our sister states need to know that today about three million fitness balls are the subject of a voluntary recall by the Consumer Products Safety Commission. Memphis retailers have sold these items as "burst-resistant". These balls are typically used by the consumer as a part of a fitness routine.

Unfortunately, the inflation instructions were written in a way that could cause an unintended over inflation. The danger here is that if the fitness ball is used after being over inflated that it could explode thereby dumping the erstwhile athlete onto the floor. As these have been sold since 2000 in department stores, it is quite likely that this product marketed under the names "Everlast", "Valeo" and "Body Fit" could be quietly waiting in your home or gym to injure you.

To see the complete recall information go to:
www.cpsc.gov/cpscpub/prerel/prhtml09/09196.html

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The Memphis Tigers are seeded Number 2 in their region in the NCAA tournament. However, Tennessee has another noteworthy ranking in which, Memphis trial lawyers are justifiably pleased. Our state did not rank in the current Top 10 in alleged mortgage fraud. Woo Hoo! The number of reported incidents of mortgage fraud has reached an all-time high in other states even as the number of home loans being issued has shrunk, according to a report released Monday. Cases of reported fraud surged 26% from 2007 to 2008, according to the Mortgage Asset Research Institute (MARI). In its 11th report, MARI reports the state of the nation for the third quarter of 2008.

Rhode Island topped the list, followed by Florida, which had held the No. 1 slot in 2007. Incidents of fraud in Rhode Island were three times what would have been expected given the number of loans made last year, the report said, although the authors said they weren't sure why.

Next on the list were Illinois, Georgia and Maryland, which landed on the top-10 list for the first time in the study's 11-year history, up from No. 15 in 2007. The State of Rhode Island had the highest percentage of fraud on tax returns and financial statements. Not surprisingly, the FBI investigates mortgage fraud in two distinct areas: Fraud for Profit and Fraud for Housing. Fraud for Profit is sometimes referred to as "Industry Insider Fraud" and the motive is to revolve equity, falsely inflate the value of the property, or issue loans based on fictitious properties. Based on existing investigations and mortgage fraud reporting, 80 percent of all reported fraud losses involve collaboration or collusion by industry insiders. Fraud for Housing represents illegal actions perpetrated solely by the borrower. The simple motive behind this fraud is to acquire and maintain ownership of a house under false pretenses. This type of fraud is typified by a borrower who makes misrepresentations regarding his income or employment history to qualify for a loan.

The FBI lists several areas of suspicion:

MORTGAGE FRAUD INDICATORS

Inflated Appraisals
• Exclusive use of one appraiser

Increased Commissions/Bonuses - Brokers and Appraisers
• Bonuses paid (outside or at settlement) for fee-based services
• Higher than customary fees

Falsifications on Loan Applications
• Buyers told/explained how to falsify the mortgage application
• Requested to sign blank application

Fake Supporting Loan Documentation
• Requested to sign blank employee or bank forms
• Requested to sign other types of blank forms

Purchase Loans Disguised as Refinance
• Purchase loans that are disguised as refinances
requires less documentation/lender scrutiny

Investors-Short Term Investments with Guaranteed Re-Purchase
• Investors used to flip property prices for fixed percentage
• Multiple "Holding Companies" utilized to increase
property values

As the recession deepens, both real and imagined violations are likely to be investigated. Remember, if you are contacted by an investigating agency, a financial institution, or a lender, seek the advice of an experienced attorney in this area.

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Posted In: Business & Corporate Law , Crime and Punishment

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Over 1,600,000 refrigerators made by Maytag under a variety of brand names were recalled due to a present danger of fire. Given the number of units and brands involved, it approaches a near certainty that Memphis and Tennessee trial attorneys will be faced with client issues respecting these products.The Consumer Products Safety Commission (CPSC) has gotten 41 reports of fires, some of which included the following brands and types:

Maytag, Jenn-Air, Amana, Admiral, Magic Chef, Performa by Maytag and Crosley brand side by side and top freezer refrigerators

Between 2003 and 2005 the CPSC reports approximately 378,700 home fires that resulted in 2740 deaths; 13,090 injuries and over $5.61 billion in property damages related to these catastrophes.In this particular case both side-by-side and freezer over refrigerator models are included, but not freezer below refrigerator types.

Do not delay in determining whether or not you have one of these time bombs in your home or business. If you have had a refrigerator fire, the statute of limitations in Tennessee would allow a lawsuit for property damages to be filed within 3 years after the fire event. To paraphrase Smokey The Bear, only you can prevent a refrigerator fire. Here is where the serial number is located to investigate the refrigerator you may own:

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Posted In: Car And Personal Injuries , Dangerous Products , Personal Injury Prevention , Premises Injuries

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In early January, American Suzuki recalled its high end motorcycle. Memphis trial lawyers have come to know that the front fork assembly can crack and break. This can send a Mid-South user headlong into serious injuries and medical expenses. The recall focuses on defects brought about by high impact uses, i.e. Wheelies, coming down hard on the front wheel after being off the ground, etc.

An article in a motorcycle enthusiast magazine recently commented:

Although Suzuki GSX-R1000s tend to be bullet-proof mechanically and can stand tens of thousands of miles of hard use, the finish isn’t quite as good as the competition. The paintwork on the panels and engine casings is thin and the GSX-R1000K7’s new twin pipes look particularly cheap – although Suzuki is probably assuming people will get rid of them anyway in favour of replacement cans.

Whether or not the bike is truly "bullet-proof mechanically" is reality or salesmanship really doesn't matter in the face of this recall.The details of the recall can be found at the Consumer Affairs website. Dangerous products cases are always a challenge.If you have suffered a loss due to this bike's failure, there may be a way to recover your losses. Contact a knowledgeable trial lawyer without delay!

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Posted In: Dangerous Products , Insurance Claims , Personal Injury Prevention

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According to the Memphis Commercial Appeal, there were 11,033 violent-crime incidents reported in Memphis in 2008. As a Memphis trial lawyer, this statistic is not at all surprising to me. As a resident of Memphis, I too have been burglarized and vandalized. In response to the increases in crime over the last few decades, Tennessee, along with many of her sister states, have enacted the Criminal Victim's Injury Compensation Act. Last year the fund paid out over $13,600,000 for injuries and costs associated with crime victim's losses. The act, which provided these payments, was amended about 9 months ago to include some new areas of assistance.

These amendments include:

1. A “relative” of a deceased victim (as defined under the Criminal Injuries Compensation Act) may be reimbursed for funeral and burial expenses that the relative has incurred due to the victim’s death. This is in addition to the legal representative of the victim’s estate who may file on behalf of the estate.

2. Effective for crimes occurring on or after July 1, 2008, eligible incidents
upon which compensation can be based now include when the crime
involved the failure to stop at the scene of an accident in violation of §
55-10-101 which directly resulted in serious bodily injury or death to
the victim and the evidence shows that the operator of the motor vehicle
knew or reasonably should have known that death or serious bodily
injury had occurred.

3. Effective for crimes occurring on or after July 1, 2008, any awards
made for medical or medical related expenses, including but not limited
to dental, chiropractic, hospital, physical therapy and nursing services,
shall be made in an amount not to exceed 75% of the billed charges if a
sum is available to do so after payment of expenses due the victim or
claimant (e.g. lost wages, permanent impairment, etc.).
If the program makes payment equal to 75% and the provider accepts
the payment, the provider must accept the payment as payment in full
and shall not bill any balance to the victim or claimant. This provision
does not prohibit the provider from seeking reimbursement from the
victim or claimant for the difference, if any, between the 75% and the
amount paid by the division under this provisio

If you think that you or a loved one may be eligible for some compensation, for example, the cost of a forensic rape test, go to the State Of Tennessee website for an excellent FAQ page. Another way to review your options, is to consult with an experienced injury lawyer. We can help.

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Posted In: Car And Personal Injuries , Crime and Punishment , Trial Practice

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Yesterday, the Consumer Products Safety Commision reported a recall of connecting rods and crankshaft assemblies made by http://www.wiseco.com/. this voluntary recall was made necessary due to the likelihood of injuries in the event that these parts should fail during their intended use.

A product such as these, under Tennessee law, is unreasonably dangerous if a consumer's reasonable expectation of the intended use of the product is not met due to some inherent defect in the product. Dirt Bikes are used not only for off road travel but also are used in competition. These specialty connecting rods and crankshaft assemblies are marketed to those who are enthusiasts of this sport. It is not hard to understand that, even when used according to manufacturer's instructions, these parts are going to be put to use in conditions that are far more challenging than simple street riding.

According to a study posted by the Centers For Disease Control in 2003, 4,769 people were treated for Moto-Cross injuries and 19,031 people were treated in Emergency Rooms for off-road injuries. Still more startling is the fact that from 2001 through 2004, 29,800 riders were injured each year from this activity. By contrast a statistical study in the Journal of Pediatrics reports:

From 1993 through 2000, an estimated 22 661 (95% confidence interval [CI]: 16 668–28 654) or 4.9 per 100 000 (95% CI: 3.6–6.2) children ≤ 14 years old with nonfatal FA injuries were treated in US hospital EDs. Assaults accounted for 41.5% of nonfatal FA injuries, and unintentional injuries accounted for 43.1%. Approximately 4 of 5 children who sustained a nonfatal, unintentional FA injury were reportedly shot by themselves or by a friend, a relative, or another person known to them. During this period, 5542, or 1.20 per 100 000 (95% CI: 1.17, 1.23), children ≤14 years old died from FA injuries; 1 of every 5 children who were wounded by a firearm gunshot died from that injury. Most FA deaths were violence related, with homicides and suicides constituting 54.7% and 21.9% of these deaths, respectively. For individuals ≤14 years old, the burden of morbidity and mortality associated with FA injuries falls disproportionately on boys, blacks, and children 10 to 14 years old. Both fatal and nonfatal injury rates declined >50% during the study period.

Caution and parental supervision is critical in the pursuit of off-road motorbiking. Each year Tennessee, Mississippi and Arkansas residents are injured by riding accidents. It makes common sense to avoid the avoidable risks,such as known defective products. However, if injuries do happen, an experienced trial lawyer can investigate and advise you accordingly.

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Posted In: Dangerous Products , Personal Injury Prevention

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The United States Supreme Court in the case of Wyeth v. Levine, handed down a decision on March 4, 2009, which denied the drug manufacturer's defense that federal regulations completely overruled (preempted) Vermont state injury law claims filed by consumer Diana Levine. Levine, who was a musician, suffered amputation of a part of her arm because of complications from an injection of the medication called Phenergan, which is a common drug used to treat nausea, that was injected into her arm by a method called IV push .

Levine won a verdict after a Vermont jury concluded that the product warnings did not adequately warn medical doctors about the irreversible effect of Phenergan which-if injected in this fashion, can reach the arteries of the human body and can cause gangrene. In the underlying case, the Vermont jury found for Levine and awarded substantial damages, medical expenses, and loss of livelihood compensation. Essentially, her musical career was wiped out, due to partial amputation of her arm. The Vermont Supreme Court affirmed the trial court jury verdict and rejected the drug manufacturer claim that the Food and Drug Administration law and regulations wiped out any state law failure to warn claim.

Justice Stevens said in the majority opinion of the Court:

“If Congress thought state-law suits posed an obstacle to its objectives, it surely would have enacted an express preemption provision at some point during the Food, Drug and Cosmetic Act’s 70 year history…Its silence on the issue, coupled with its certain awareness of the prevalence of state tort litigation, is powerful evidence that Congress did not intend FDA oversight to be the exclusive means of ensuring drug safety and effectiveness.”

The decision of the court was 6-3, with one of the six votes being Justice Clarence Thomas who stated as follows:

“Because such a sweeping approach to pre-emption leads to the illegitimate – and thus, unconstitutional – invalidation of state laws, I can no longer assent to a doctrine that preempts state laws merely because they ‘stand as an obstacle to the accomplishment and execution of the full purposes and objectives’ of federal law.”

This important decision creates a the financial disincentive for a corporation or drug manufacturer by virtue of the power of a jury or judge to penalize a drug manufacturer for negligent or wrongful conduct. I have represented both doctors and injured persons in matters such as these. Some may say that this ruling is quite politically liberal. For me, it stands for the purest form of constitutional conservatism, i.e. the states have a right to regulate conduct within their own borders. This is a victory for the little guy (girl) against huge corporate conglomerates. Bravo.

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Posted In: Car And Personal Injuries , Dangerous Products , Trial Practice

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As a Tennessee trial lawyer, I try to keep up to date on events that impact not only my clients, but my profession, as well. An article today referred to an alleged "crisis" resulting from attorney's fees in Nursing Home cases, caught my attention. The article urges "tort reform" because out of state lawyers are supposedly filing cases in Tennessee because this is a more favorable environment. The article also makes the statement, without any supporting reference, that lawyers make huge in fees by over-stating the nature and extent of the injuries to our elders. We have now heard the rhetoric. Now for some facts in this important matter.

Fact One: This article focuses on shaping public opinion through the use of paid "opinion managers". Ms. Kristen Havner of Jarrard is a woman with a depth of political expertise and is listed as the "contact" for reply to this article. The mission of Jarrad is rather clearly set forth on its website which offers its services for opinion management, among other issues.

Fact Two: The reports compiled in Tennessee by the Administrative Office of the Courts (AOC) http://www.tsc.state.tn.us/index.htm refutes the inference that huge awards are resulting in huge attorney's fees for either in state or out of state trial lawyers. Jarrard in the article quotes a nurse from the Vanco Nursing and Rehabilitation facility in Goodlettsville to support its argument that these cases are driving down the morale of nurses and increasing the costs of care. The Goodlettsville area is in the judicial districts for both Sumner and Davidson Counties. During the 2007 to 2008 time period, according to the AOC, the average trial award in personal injury or death cases in Sumner County was $153,250 and in Davidson County was $111,551. This category of matters includes not only nursing home cases, but slip and falls; car crashes; dangerous products, etc.

Fact Three: Jury trials can only make awards to injured persons if, and only if, 12 citizens of the county where the injury happened are convinced that the greater weight of the evidence supports the injured person's case. Then, upon proper Motion, the trial Judge who heard the proof must also approve the verdict. Trial lawyers do not create cases out of thin air that result in verdicts. In these cases, a nursing home resident must have been harmed by the carelessness of the nurse or nursing home. Our system of civil justice is based upon the idea that just compensation is set by the jury and not by the lawyers. Let us not indict our neighbors for trying to be fair when exercising their sworn duty.

The ChooseCareTN Act of 2009 is being vetted by this public relations firm. The proposed legislation, if based upon the things stated in the article, is grounded on the needs of the nursing home special interest groups. Use the facts! They serve us well in Court and in the forum of public opinion.

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As a Memphis trial lawyer who handles both disputes over money and criminal law cases, I have found it quite interesting and distressing to see the rush to judgment in the press of those persons who have worked for or with Stanford Financial Group (SFG). Lives are and will be ruined for many Tennessee residents by what are, for the time being, only accusations. Having said that, the most innocent ones involved are the investors.

In order for an investor to recover his or her money, a Federal District Judge has appointed a Receiver Ralph Janvey bio. A Receiver's job (Order Appointing) is to gather and value all of the assets of a company which in this case is SFG. Then, subject to the Court's approval, a plan of distribution of assets and payment of trade creditors is worked out. If the Judge approves the plan then payments can begin. Typically, this is neither quick nor easy.

If you or a loved one is in need of recovering the investment, by Court order, you can not take any action to collect it at this time in a Tennessee court. In the Temporary Restraining Order (TRO) the Judge has prohibited any collection activity unless it is first approved through his Court. As a TRO is only valid for a short period of time, (This is supposed to protect those restrained from excessive harm if the TRO was issued based upon inaccuracies.) a hearing will be held on March 2, 2009 for a ruling as to whether or not the TRO will be extended and converted into what is called a Temporary Injunction. This hearing is open to the public and may give us all additional insights into what is on the horizon.

In the meantime, if you are one of the unfortunate investors, begin gathering all of the paperwork that you have concerning your investment. Make out a time line of the events leading up to your investment and a list of those persons(name, address, phone number, etc.) with whom you have dealt, as well. Last, the Receiver has set up a website (http://www.stanfordfinancialreceivership.com/) in order to keep us posted as to the progress of this matter and to pass on information that may assist you. The Receiver has hired a very prestigious and large law firm to handle the necessary legal matters concerning this situation. Respectfully, if you are not represented by a lawyer you will be in the uncomfortable position in trying to get your money back of the guy who brought a knife to a gunfight. To protect your future which is your most valuable asset, seek out an experienced lawyer without delay.

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Posted In: Business & Corporate Law

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Have you ever had that queasy feeling that you are being watched? Did it ever occur to you that it might be your snack that has its eyes on you? Having dealt with spoiled food cases in Memphis and West Tennessee for many years, this trial layer has never seen anything like this before. In Tennessee law there is a rule called the Closed Container Doctrine.

This protects a distributor of consumables from liability if the product came into their hands sealed and left the same way. For example, A Memphis consumer opens a soft drink that is still capped and finds a mouse inside. Unless the injured person can prove that what was in the sealed container was somehow the fault of the store owner, the plaintiff would not succeed against the store even though a claim might well exist concerning the manufacturer.. What follows is a video of what may be the most disgusting thing that I have ever seen respecting an adulterated food product.

We have all read and heard about the peanut butter recalls. This story makes on wonder if a bug infested product should be recalled or exterminated. Either way, if you find a product that is full of bugs, worms or other vermin, save the product in a sealed container and the receipt for purchase. The call the Shelby County Health Department. In closing, I think I need to go take something for nausea.

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There has been no shortage of legal gossip around the Memphis trial lawyer water cooler this week. Federal securities law is only slightly harder to figure out than the Internal Revenue Code if it is written upside down in arabic. The national news has been filled of late with the alleged looting of money from innocent investors who placed their savings with the likes of Bernie Madoff. Tennessee charities, retirement funds and individuals have lost enormous sums to this incredible Ponzi scheme. Now we have an alleged swindle that is far closer to home, Stanford Financial. I have yet to see any proof that this investigation (Yes, folks it is ONLY an investigation at this point.) is a bona fide pyramid fraud.

It is important to remember that no one has been proven to be negligent or reckless or even a little bit less than careful. One can only wonder if this media frenzy will pan out to be just that, i.e. the SEC trying to flex its governmental muscles that were so underused during the Madoff heydays. The 1933 and 1934 securities laws prohibit false or misleading statements or the omission of material facts, either of which induce a person to invest their money. A whole raft of regulations in this area of the law (and others) weave a web of control and oversight of this industry. Tennessee law provides for parallel regulation and enforcement similar to the federal laws. With this in mind one must ask: "How the #@%#$@#$@ (heck) do schemes like the Madoff fraud happen?"

Perhaps Charles Ponzi (actually Carlos) , after whom this scam was named, could tell us. For me, an accusation is merely that. An indictment is only an accusation and the filing of a lawsuit against these individuals and companies is only a "claim for relief". Certainly, not a certainty. Either way, this newsy issue must await judgment in the court of public sentiment unless and until this civil action is tried to a conclusion before a court of competent jurisdiction.

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Posted In: Business & Corporate Law

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