Memphis Injury Lawyer Blog

In 2006, according to a CDC report, a total of 38,396 persons died of drug-induced causes in the United States This category includes not only deaths from dependent and nondependent use of legal or illegal drugs, but also poisoning from medically prescribed and other drugs. It excludes unintentional injuries, homicides, and other causes indirectly related to drug use, as well as newborn deaths due to the mother’s drug use. In Tennessee, 1030 deaths were caused by drug usage both legal and illegal. See, cdc.gov/wonder

These results are indicative of the endemic drug problems in society as a whole and Tennessee in particular. Drug abuse cuts across economic, generational and law related lines. For example, The Bureau of Justice Statistics reports in 2007 that 73% of our fellow citizens view drug related problems as either extremely or very serious.BJS Drug Statistics. Is there an area of the law that is not impacted by the reality of these concerns? Just this week, a nine month old child was placed into state custody when the parent's home was raided and a methamphetamine lab was discovered. CA drug bust. Recently, actor Dennis Quaid and his wife are suing a hospital because their children were given a massive dose of blood thinning drugs made by Baxter Pharmaceuticals.. The product liability lawsuit seeks more than $50,000 in damages and claims Baxter was negligent in packaging different doses of the product in similar vials with blue backgrounds. The lawsuit also says Baxter should have recalled the large-dosage vials after overdoses killed three children at an Indianapolis hospital in 2007.

While these two events are at the opposite ends of the legality spectrum, both point to a logical conclusion. Legal and illegal drugs severely impact upon children in all areas of their lives and, sadly, sometimes causes their deaths. I can offer no solutions to these tragedies. We can all only hope that as time passes, a solution can be fashioned based on common sense and rule of law. I am going to dig further into this knotty issue and I will try and write on the impact of drug use or abuse on divorce and custody cases. More to follow.

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:

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.

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.

Memphis Trial lawyers, as well as, Tennessee trial lawyers face both the civil law and criminal law results of violent crime. Not only do the victims of such events seek legal counsel, but if the property where the violent crime happens is a leased apartment, for example, then the owner of this premises may have severe legal consequences too. Usually, liability for injuries of this type boils down to a question of "foreseeability".

For example, on March 7, 2002, at approximately 11:45 a.m., L.C. Miller, a tenant in Jefferson Square,one of several public housing projects owned by the Memphis Housing Authority (“MHA”), argued with the housing project’s security guard, fired shots in the direction of his office, and struck and killed Charles Cornelius Brown, Sr., another tenant at the facility who happened to be in the office area at that time. Brown was not involved in the argument. Miller was subsequently shot by the security guard, who was an employee of Scruggs Security and Patrol, LLC (“Scruggs”), a private company which provided security at the facility at the time of the shooting. A wrongful death lawsuit followed against the MHA and the guard company.

The trial court held that neither the internal policies of MHA nor the contents of the criminal background check of Miller created any duty to the Plaintiffs under these circumstances. Moreover,after observing that a policy excluding those with prior records(from renting) would result in “a massive underclass of ex-convicts homeless due to an inability to find housing,” the trial court rejected the Plaintiffs’ argument that there was an affirmative duty on the part of MHA to conduct a criminal background check on prospective residents.

The Court of Appeals affirmed the dismissal in favor of MHA, holding that “an isolated violent outburst by . . . Miller was [in]sufficient to notify MHA that criminal acts against its tenants were reasonably foreseeable, either generally or at some particular time” and, in consequence, insufficient to give rise to a duty (on the part of MHA) in these circumstances.

The Tennessee Supreme Court granted permission to appeal. They noted, that the landlord and tenant qualify as having a special relationship. Further, violence in a housing project is, generally speaking, foreseeable. Poverty is common in such areas. In consequence, precautions are warranted. The Court found that the record establishes that MHA, aware of this potential danger, took some measures to guard against violence. In 1996, criminal background checks extending over a period of three years, a credit history report, and a home visit were warranted for a variety of reasons, including safety. The question, of course, is whether MHA, with some general knowledge of criminal activity within its housing complexes and a particular knowledge of Miller’s altercation with another tenant four years earlier, could have reasonably foreseen the probability of a violent act. We think so.Giggers v. MHA case opinion.

In order to guard against becoming a victim, the following video will provide some important information:

Violence & Street Crime: Violent Crime Safety

Just last week, a West Tennessee family flirted with death by suffocation. This Lake County family, had an improperly vented heater that poured carbon monoxide fumes into their home. Early in my career as a trial lawyer, I handled my first two carbon monoxide death cases. This cause of death is often times connected to either improper venting of a source of this silent killing gas or a heater that inefficiently burns its fuel. Of course, space heaters are not the only potential threats.
Gas water heaters, pool heaters and, for that matter, propane BBQ's can all emit deadly amounts of this odorless, colorless and tasteless gas.

In 2005, two people died from carbon monoxide exposure by running propane buffers, both of which occurred in the workplace. In addition, the Tennessee Department of Health reported that in 2006 there were 11 unintentional deaths due to carbon monoxide poisoning and approximately 150 people who suffered carbon monoxide-related injuries. In 2007, six more people died as a result of carbon monoxide poisoning in Tennessee.

The deaths to which I made reference earlier happened in Paris, Tennessee and at Chucalissa Indian Village (over 30 years ago) which is just south of Memphis. In both cases, the product that was functioning properly became a death machine due to improper venting which resulted in a gas trap which then creates a self-perpetuating problem. In other words, the more CO in a space, the less efficient a heater will be in burning all of its fuel. The by product of this vicious cycle is Carbon Monoxode.This video will help explain why:

Each year the courts in Memphis and all of Tennessee are jammed with persons who seek the advice and aid of trial lawyers. Whether the case goes to trial or not does not lessen the importance of following orders of the Court. While being jailed for contempt of court is not commonplace, it does occur with regularity. For example, a Knoxville woman was recently jailed for her refusal to abide by a Court Order involving parenting time.

As a trial lawyer, it is my ethical duty to always counsel my clients to obey the orders of the Court. Disobedience of these orders is not the way to challenge a ruling that one may find to be improper. From almost any decision, a person can appeal to the next higher court. Many times I have heard judges say that they have made the best decision that they can and that if either party is unhappy, then the displeased person can seek an appeal to the next higher court. However, the story of the woman in Knoxville caused me to consider whether or not Tennesseans really understood all of the consequences of willfully refusing to abide by a judge's decision.

In Tennessee, there are generally two kinds of contempt of court, civil contempt and criminal contempt. The difference between the two can turn on where and how the offensive conduct happened and the type of consequences that are available for the Judge to use. Tennessee Code Annotated, section 29-9-102 defines the breadth of behavior that may be the subject of a perrson being held in contempt:

The power of the several courts to issue attachments, and inflict punishments for
contempts of court, shall not be construed to extend to any except the following cases:

(1) The willful misbehavior of any person in the presence of the court, or so near
thereto as to obstruct the administration of justice.
(2) The willful misbehavior of any of the officers of such courts, in their official transactions.
(3) The willful disobedience or resistance of any officer of the such courts, party,
juror, witness, or any other person, to any lawful writ, process, order, rule, decree,
or command of such courts.
(4) Abuse of, or unlawful interference with, the process or proceedings of the court.
(5) Willfully conversing with jurors in relation to the merits of the cause in the
trial of which they are engaged, or otherwise tampering with them.
(6) Any other act or omission declared a contempt by law.

I think that it fair to say that no one should spit into the wind, or tug on Superman's cape, nor commit any of the above acts. Fortunately, most Judge's in my experience do not want to exercise these powers if they can avoid it. However, it can and does happen. Make sure that it doesn't happen to you, but if this fate should befall you, seek out an attorney who is very familiar with this area of the law as well as the jurisdiction in which the contempt has occurred.

Falls can be crushing for men and women, not to mention the heavy impact on their Memphis families. I recall a case a few years ago when my client fell 6 feet from a scaffold striking the back of his head on the edge of a steel plate. This incident brought to me the weighty obligation of a trial lawyer. My client was rendered a paraplegic and the future welfare of his wife and kids became my responsibility.

Yesterday, Memphis Fire Department crews rescued two men who fell inside a silo at an asphalt company on Presidents Island. According to fire officials, it happened around 3:30 p.m., Thursday, January 29, 2009, in the 1900 block of Wharf Street at Channel Avenue. Officials say the two men were working on some scaffolding when it collapsed and they became trapped in the silo at Ergon Asphalt Company.

An article in the Journal Of Safety Research in 2003 studies work related deaths due to falls from scaffolding for the period on 1992 through 1999. The study considered 339 deaths. For the 6 years considered, 56 workers died each year from these necessary construction appliances. This computes on average to over a death a year for every state in the United States. As most of these catastrophes were avoidable,OSHA regulations became tighter.If you or a loved one works with these lifts, scaffolds or platforms please remember the lessons learned in the following video. If an injury occurs, please consult with an experienced trial lawyer. We can help.

Sunday, a Grand Casino bus crashed near Tunica when it was involved in a collision with a private car.Yesterday, a Munford school bus was involved in a rearend collision. In the last five years, I have been involved in several bus cases that required the services of a Memphis trial lawyer. These cases involved serious injuries and deaths. Some of the losses were horrible. These matters have caused me to investigate bus safety in both Tennessee and the United States, as a whole.

In a recent eurpopean bus crash safety study a careful analysis was made of not only seat belt use but also seat placement issues and their impact on rider safety. Use of a 3-point belt system was recommended to prevent the contact between passenger head and seat back in front in most cases. The use of a 2-point belt system produces a higher neck extension risk for a frontal impact than a 3-point belt. Attention must be paid to the correct restraining of children.

Effective in April of 2009, new government regulations on seatbelts in buses will come into effect. These new rules will require torso belts which were one of the types examined in the european study. The hope is that when the 2011 deadline for implementing these requirements for all newly manufactured buses come to pass that injuries from bus related crashed will decline. Special emphasis is required to protect our children when they have been placed into the care of our school systems as the following video demonstrates:

Each year Memphis trial lawyers deal with children who are maimed or killed by the single most dangerous machine in Tennessee: the automobile. Our personal injury law firm recently represented a family whose young son was struck by a car which resulted in the young man being thrown over 30 feet into the air before he landed near the middle of Lamar. The Memphis driver was an elderly gentleman who simply failed to see the boy crossing the street.

According to the National Highway Traffic Safety Administration (NHTSA) there were 4,749 pedestrian fatalities in 2003 in our county. The 0-14 age group accounted for390 (8 percent) of those fatalities, and 65 percent of the pedestrian fatalities in this age group were males.In addition to the pedestrians under 15 years old who died, 17,000 were injured in motor vehicle crashes. These young pedestrians accounted for 24 percent of the total pedestrians injured in motor vehicle crashes in 2003.Almost one-fifth (18 percent) of the traffic fatalities in the 0-14 year age group were pedestrians.

During the same time period, according to the MPD, our local situation was no better:
Memphis fatal accident list for 2003:

* Fatal accident count: 80
* Vehicles involved in fatal accidents: 128
* Fatal accidents caused by drunken drivers: 3
* Fatalities: 90
* Persons involved in fatal accidents: 225
* Pedestrians involved in fatal accidents: 27

In the face of these findings, Memphians continue to fly through school zones as though our children's lives did not hang in the balance.

We hope that your children remain safe and secure going to and from school. However, it is the parents who owe a duty of reasonable care to the children. If this duty is not met, make sure that your child's rights are protected.

School teachers have daily contact with our children. Almost all of these under paid educators are not only molding our young, but are protectors of them as well. Sadly, as a Memphis trial lawyer who tries cases all over our state, I have seen predators in sheep's clothing: teachers who rape their students. Whether this abuse is by consent of the child, the physical contact is not only criminal battery but it is also grounds for a civil lawsuit. But, not all situations are the same in all states. A Washington state appeals court has recently decided that their criminal law of rape of a child by a school teacher was only designed to protect students who were under the age of 18.

This issue is not isolated from the mid-south. A Sumner County school teacher has been arrested for allegedly having sex with several of her students who were under 18 at the time of the supposed conduct. Whether this woman (who must be presumed innocent until proven guilty beyond a reasonable doubt) is found guilty or not, the situation does highlight the problem for all of us.

Tennessee sexual battery by an authority figure law and Tennessee rape statutes both provide ample authority to punish those who take advantage of their positions of trust. In Memphis,if a child is sexually abuse by a teacher-predator, the law is there to deal with the situation from the criminal law perspective. However, such a convicted teacher can also be sued in civil court for the horrible injuries that result from such conduct:

CIVIL 8.02 Definition—Battery
A battery is any intentional, unlawful, and harmful [or offensive] physical contact by one person with another person. The intent required for a battery is not an intent to cause harm. It is an intent to do the act that causes the harm.
CIVIL 8.03 Right to Recover
A plaintiff who has suffered any bodily harm legally caused by a battery by a
defendant is entitled to recover damages from the defendant for that injury.

So if the wrongful physical contact is sexual or if the offensive behavior is hitting a child, there is a remedy. These types of violations do occur and parents need to be aware of what can be done so that another child does not fall victim.

If you are injured in a car wreck; have a contract dispute that winds up in court; or are an accused in a criminal case, a Memphis or Tennessee trial lawyer could not only represent you, but could also be a member of your jury. That is, if the trial lawyer doesn't have a bad case of body odor or if perhaps he or she may have already formed an opinion on the case. In a recent Massachusetts appellate court ruling, the trial judge was upheld for removing a juror because she had a case of felony body odor:

"There was a juror seated in seat No. 10, juror 6-5, . . . who I'd made inquiry of earlier. And I just want the record to reflect, I guess, to be blunt, [the juror], for whatever reason, had some very bad, I guess to be blunt again, body odor, which was extremely strong, and I was able to detect in my lobby, as was the clerk, which is a personal matter for that potential juror, but for the fact that her personal problem was [of] such a magnitude that other jurors who had already been picked . . . either by act or words had indicated discomfort with that problem." I know that this humorous example is extreme, to say the least, but some rather wild excuses have been tried in several cases both in Memphis trials and around the country.

In the Chicago R. Kelly trial, let's see what some creative citizens tried:

1. I have a teenage daughter. Several axed jurors provided this explanation for why they couldn't give Kelly a fair trial. "I would have a hard time see anything involving a child without thinking of my child," one man said.
2. I save lives. An oncologist was excused from duty after he told the judge that jury service would create a logistical nightmare for his patients.
3. I'm a cop One Niles police officer lasted only about two minutes in the interview room before he was dismissed because of his profession.
4. I'll change my vacation plans. Overeagerness to serve on the jury is a definite red flag to attorneys. When one man offered to rearrange a trip to see his parents, the prosecution bounced him for being starstruck.
5. I'm getting married! The judge dismissed one woman whose wedding was set for the end of June. He didn't believe she could concentrate on the trial amid all the pre-wedding prep. The woman, who sported a nice size diamond on her left hand, looked thrilled to be released.
6. Please call my mom When one juror failed to show up for service, deputies called his house and his mother answered. She told the court that she didn't know where her son was and that he hadn't been "right" since he was shot in the head a while back. The judge and attorneys agreed to let him off the hook.
7. I blame R. Kelly for Sept. 11. When the judge asked one prospective juror about his feelings regarding Kelly, he cryptically answered: "R. Kelly may have led the Taliban in attacking us on 911, but you can't prove it." You're right, we can't. In fact, we're fairly certain that no one has ever tried.

Juror selection or voir dire ( latin for "speak the truth") is probably the single most important part of trials. It is an art and not a science. The pool of potential jurors is first qualified for service based upon the language of the new statute. The Shelby County Jury Commissioner, Clyde "Kit" Carson, administers the methods used to select a fair cross-section of those who are included as potential jurors for each term of both civil and criminal courts. We are fortunate to have such a knowledgeable and dedicated public servant. Kit has, as a result of years of experience, heard every possible excuse. Suffice it to say,that if you attempt to shirk your duty (and privilege) of jury service with the old excuse that "My dog ate my notice to serve." you will face not only our commissioner but also a Judge. Each panel is examined by a sitting Judge whose duty it is to call the balls and strikes concerning both the qualifications of persons to serve, as well as the valid exemptions from jury service. By the way, it is a crime in Tennessee to ignore your notice to appear for jury service.

Hot tea and lemon? Feed a cold and starve a fever? Vick's Vaporub may be dangerous? You have GOT to be kidding! According to a new study that was published in the medical journal, Chest, it might be harmful to use this time honored product on very small children. This article has created a wide range of reports on the web and elsewhere concerning this product.

At least trial lawyers will not be blamed (for once) for spreading the news reports. As a Memphis trial lawyer, I can tell you that one of my most vivid memories from childhood is the mixture of the aromas of homemade chicken soup and Vaporub. However, before we go off on a tangent, it is worthwhile to hear both sides of this issue.

On the Vick's Vaporub website, there is a page that details the proper use and ingredients of this product. Also, on the website is the response of Vick's to the publication of the article. I urge everyone to carefully consider the merits of both views of this subject. I have done so and it is my opinion that we should all adopt a wait and see attitude.

There are many well used products and natural remedies that have been called into question in recent years. Some doctors prescribe the remedy Saw Palmetto for prostate health. This remedy has existed for hundreds of years and still remains useful. Let's give Vaporub an even break with this remedy.

Trial lawyers, parties to lawsuits and the public at large, often hear about our crowded courtrooms and the "huge jury verdicts" that are handed down in our city and state. Frequently, these comments are followed by proposals to alter the jury system. Proposals that call for changes in the method and manner by which our courts are run and the way in which personal injury and death cases are evaluated by our neighbors who sit on Circuit Court juries.

As a Memphis trial lawyer, I can tell you that those who urge these changes are either miss-informed or who have a different agenda. But please, don't take my word for this thought. Instead, let us do something that is novel and unheard of in the news reports on this topic. Let's look at the facts.

Each year, as we recently reported, the Tennessee Administrative Office of the Courts issues an Annual Report of the filings and dispositions of cases in our state. It is also broken down by county.

In 2007 through 2008, 62,204 cases were filed throughout Tennessee and 61,890 cases were disposed of by the Circuit Courts. this indicates to me that there is not a tidal wave of filings as we are resolving almost as many old cases as there are new cases filed. Of these disposed cases only 351 matters actually went to trial by jury. Approximately 11,500 of the cases disposed of were probably personal injury or death cases that did not involve a claim of medical negligence or in other words approximately 18.5% of the cases. However, the most interesting figure for Shelby County is that only 22 personal injury cases went to trial in 2007-2008.

The average verdict returned by our juries was $89,260.00. And no, I did not misplace a comma nor omit a zero. In the law there is a latin phrase: Res Ipsa Loquitor. In english, this translates into "The thing speaks for itself." In this case, the facts speak for themselves. I rest my case.

Here we go again. Another child mauled by a Memphis pit bull dog in less than 30 days. On December 1st, we posted an article discussing the dangers and laws that Tennessee trial lawyers see all too often when representing injured people. It has been said that the best predictor of behavior is a look into the past. Sadly, another child has become a victim in Memphis, Tennessee.

In this most recent case, the attacking pit bull was a "stray". The Memphis Humane Society investigates animal cruelty reports in Shelby County. For example, there is the case of Fudge.

Fudge was found in a ditch on Fite Road. A citizen was driving by and saw him laying there and at first thought he was dead. Then she saw him raise his head. She turned around and came back. When she got out, he wagged his tail. She got him in her car and brought him to the Humane Society.

Fudge had numerous bite wounds, a broken toe on his right front paw, his gums were pale, he had open wounds all over his legs, and he was malnourished. He had to have his leg put in a splint to stabilize the break. We also had to bandage his many wounds.

He was put on antibiotics and pain medications. His feeding schedule had to be slow at first because he was so malnourished. It took 3 days for his gums to return to pink. He may always have a permanent limp where the break was.

Fudge is about a year old. It makes you wonder how many strays that become viscious were made that way by the dog-fighting underworld. Apparently, dog-fighting as a blood sport is reported in newspaper accounts as early as the 1700's in America. The American Society for the Prevention of Cruelty to Animals has investigated and reported this national disgrace for many years. Tennessee has very strict laws on abuse or neglect of animals. If you know of a case of animal cruelty or dog-fighting, call the Humane Society at 901-937-3900.

You may be saving your neighbors from injury or death. You may also be protecting the safety and welfare of a dog who would but for mistreatment be a loving pet and companion.

It never ceases to amaze personal injury trial lawyers, the variety of risks that Tennesseans are exposed to on a daily basis. Trial lawyers are prepared to deal with medical mistakes; foods that are dangerous to consumers and cars that are dangerous in one way or another. However, a very recent product recall has caught my Memphis trial lawyer eye. Yesterday, the Celeste Industries Corporation in conjunction with the Food and Drug Administration voluntarily recalled its "Simply SmartRemove" towelettes.

These seemingly harmless moist towelettes were distributed in the United States and Canada by the Holiday Inn Express hotel chain as free in-room amenities. If you have visited a Holiday Inn Express in the Memphis area or elsewhere in Tennessee and have used these products, then you need to be aware of your risks. These cosmetics removers have been found to contain pseudomonas aeruginosa. This germ is commonly found in hospitals and is especially dangerous to those folks who are already ill from some other cause or whose immune system is already weakened.

This bacteria is especially hard to treat as it is usually drug resistant. These infections are usually treated with two antibiotics at once. Pseudomonas infections may be treated with combinations of ceftazidime (Ceftaz, Fortraz, Tazicef), ciprofloxacin (Cipro), imipenem (Primaxin), gentamicin (Garamycin), tobramycin (Nebcin), ticarcillin-clavulanate (Timentin), or piperacillin-tazobactam (Zosyn). Most antibiotics are administered intravenously or orally for two to six weeks. Treatment of an eye infection requires local application of antibiotic drops.

If you or a loved one have used these small, foil wrapped amenities towelettes and have developed an eye or other facial infection, you should seek immediate medical attention. If you took (Dare we say it?) some of these products home, I would suggest that you do not use them. Contact information is included in the recall information highlighted in red in the first paragraph of this article. However, also take care if you have developed a broader infection such as pneumonia or a heart infection both of which can arise from this nasty little germ.

Trial lawyers represent a wide variety of clients. We prosecute claims on behalf of persons who think that they are entitled to compensation for wrongful conduct and we defend those who deny that they have caused any harm to another. In Memphis, our court's handle all manner of cases involving personal injuries or death. Included in this category are medical errors that may have caused harm to a person. These cases are referred to by Tennessee and Memphis injury lawyers as medical negligence or malpractice cases.

There is an idea among Tennesseans that there is a crisis in our state in this area of the law. A very recent newspaper article in a Murfreesboro newspaper indicates that this crisis is high on the agenda for the legislature this term. The reason for this concern has been said to be based upon the high costs of medical negligence insurance brought about by a huge increase in the number of claims of this type that have been filed when coupled with an increase in the amount of jury verdicts.

In both Memphis and Tennessee, the facts do not support this thought.

Beginning in 2004, the Tennessee Administrative Office of the Courts began tracking medical malpractice case filings and the results. As a Memphis trial lawyer I am not surprised by the results. The report for 2006 through 2007 is very revealing:

For fiscal year 2006-07, there were 584 medical malpractice cases filed and 416 cases disposed of under the medical malpractice reporting category. Fifteen of the 416 cases disposed of proceeded to trial. Monetary damages reported for these cases was $55,167.

Simple math and logic tells us that the average jury verdict in these matter is $3677.80 for the fifteen cases that were tried to a conclusion. This sum will hardly cause a financial ripple for doctors or their insurance companies. So where does the crisis come from? The American Medical Association has put Tennessee on its hit list for "tort reform" in order to subconsciously lobby our potential jurors for still lower awards. As a trial lawyer who has represented both the plaintiff and the defendant in cases of this type, I firmly believe that a fair jury does the fair thing. Far less than this can apparently be said about the AMA's position when it is viewed in light of the evidence.

You may recall that just last week I blogged about a daycare fire and its connection to the dangers of space heaters. Time and again, Tennessee trial attorneys are called upon to deal with the aftermath of fire disasters that are brought about by falling temperatures and these potentially dangerous products. Just today there has been a house fire in the Cooper-Young neighborhood. . To further highlight the importance of precautions, another house fire that is suspected to have been caused by a space heater happened yesterday, as well.

Please remember that as the holiday season progresses, you can save your own life and the lives of your loved ones too. Just be sure that there is a three foot safety zone around your space heater. Don't allow anything that can burn in that area and be sure that if something is tipped over, say a rack of clothes drying, that it will not fall onto the heater. Happy and safe holidays to everyone.

Yesterday, an Alamo, Tennessee off-duty police officer was driving by a daycare when he noticed smoke coming from the building. Without regard for his own safety, the officer rescued three children from a fire that has been tentatively determined to have been started by a space heater. The most severely injured child was airlifted to Memphis for treatment of burns. Whether or not the space heater was a dangerous or defective product or the fire was started due to consumer error, remains to be determined.

Trial lawyers deal with these sorts of issues on a daily basis. However, regardless of the cause of the fire, the absence of the daycare owner at the time of the fire could subject the facility to paying damages. Fire cases are a peculiar blend of facts and science. I have handled many of these cases through the years in most parts of West Tennessee and the surrounding area. It is also unusual for a fire to be discovered as was this one:

From 1990 to 1997. 57 children died as a result of daycare fault according to a recent study by the U.S. government. 13 million children are placed in non-parental daycare each year. Similarly, 25,000 residential fires are caused by space heaters each year resulting in 300 deaths according to another national study by the United States Consumer Product Safety Commission.

The joinder of these two "accidents looking for a place to happen" can be deadly. Should one of your loved ones or friends suffer harm from either or both of these dangers, consult a qualified and experienced trial lawyer. We can help.

The golden years are supposed to hold a time for Memphis elders to enjoy the fruits of their labors. As we age, and we all do, many Mid Southerners become caretakers for their elderly parents. This can result in being required to deal with Tennessee nursing care facilities. A sad sign of our times, remains the abuse of our senior citizens by those into whose care we place our mothers and fathers. Recently, trial lawyers have come to know just how horrible these situations can become. In Jackson, a Mississippi nursing home worker has been charged with abuse of her elderly patients. Due to modern technology, some of these incidents have been caught on camera, as you will see below:

In a recent study of 35 complaints of nursing home or elder abuse, some startling results were uncovered. It was found that the most common victim of this deviation from the reasonable expectations of care was a 76 year old white female. African American women of the same age were equally likely to be at risk, as well.

In response to these issues, Tennessee has established the Abuse Registry. Tennessee law defines abuse or neglect rather specifically. This link will allow you to both investigate and report incidents of neglect or abuse of your friends and family. In the event that you become convinced that abuse has occurred, please consult a trial lawyer who has experience in protecting the rights of those who are so vulnerable and unprotected. We can help.

As a Memphis trial lawyer, during the holiday season, I see many Tennesseans who have become ill due to food poisoning. This is, more properly, an illness that arises from a food borne pathogen. In private homes, restaurants and schools, special goodies will be prepared and stored. Many of these products can become the source of "food poisoning" (aka Montezuma's Revenge). While some can die from salmonella and others, most victims just feel as though they wish that they would die so that they can feel better. There are ways to protect your family from these stomach-wrenching conditions.

What follows, are some methods to prevent the growth of the micro-organisms which cause these illnesses.

Having been reminded of how to prevent the conditions, next we turn to the signs and symptoms of this group of conditions, when prevention fails.

I can assure you that no one loves to eat more than I. I can also assure you that eat, drink and be merry, is my holiday motto. Yet, what with food recalls (even chocolate Teddy Bears for goodness sake!) and food borne illness issues, I will still be cautious of what I eat and where I drink and with whom I am making merry. Happy holidays to all!

When a new client approaches me to handle their Memphis personal injuries resulting from a careless Tennessee truck driver, I always try to fully and carefully investigate each matter personally. Sometimes, this involves more than just going to the scene in order to get the facts "in my head". Of course, the earlier that the investigation is begun the better for a Mid South person who has suffered a personal injury.

I can guarantee you that the trucking company will have someone on the scene to protect their interests before the tires have stopped smoking. However, since the early 1990's cars and trucks as well have a device that is essentially the same as the "little black box" that is installed in commercial aircraft. For example, the following video illustrates not only the importance but the value of a thorough investigation:

Technology can help a careful analysis of a crash to focus on the issues of fault and the responsible parties for that fault. However, the "black box" is not the only tool that is available to a well prepared and knowledgeable trial lawyer. Since September 11, the Department of Homeland Security (nationally) and the Tennessee Department of Transportation (locally) have installed literally hundreds of video cameras across our roads and highways. In Tennessee, the Smartway program has provided access to a real time record of crashes that can be accessed to help prove a case. Remember though, these videos are not kept forever, so an injured person must move swiftly in order to protect their future safety and security.

Chess nuts roasting by and open fire. The yule log all aglow. Sounds inviting, doesn't it. However, if your Memphis chess nuts are roasting by the fire from your living room couch, the picture is not quite so cozy.The National Christmas Tree Association estimates 36 million trees are sold each year. Christmas trees are involved in about 400 fires annually, resulting in 10 deaths, 80 injuries and more than $15 million in property damage.

The figures for Tennessee are shockingly similar. As a Shelby County trial lawyer who handles fire cases, I can tell you all that there is no more gruesome image than that of a horribly burned child or elderly adult. For example, 16 people were killed in Tennessee in 1989 during a single fire incident at a Johnson City Nursing home. It is amazing and frightening to see how quickly a Christmas Tree fueled fire can spread, as this video shows:

Rather than face a wall of flame, one must take a few simple precautions. The American Academy Of Pediatrics has a few common sense ideas on holiday safety or (en espanol). During this joyous time of year, we can only hope that our future is bright and that our precious families are safe and secure. Happy Holidays to all of you.

It was Tuesday. I was working the day watch in Child Delivery and Trial Practice; East Memphis Precinct. The boss is Comandante Mom. My partner is Zachary. We had left the Memphis station house at 0715 a.m. and we then proceeded to our first drop. It was a cool, clear crisp morning. The kind rarely seen in Memphis. As I watched Zach enter point Middle School, I realized that I was on solo patrol. The very thought of it made my blood run cold with anticipation. Sweat began to bead on my forehead as I ran through the rules of engagement for the rest of the watch:

Proceed from initiation point Alpha to the the Downtown Precinct. Once there gather the needed equipment for a forced entry at the Department of Safety. Then proceed to point Bravo for a deposition exercise. The final leg of today's patrol was the dangerous and minefield laced route I-240 back to East Precinct. An orderly and well planned mission, it was. But, it was not to be.

After departing point MS in route to Point Alpha, I slowed my brand spanking new MX-5 for a convoy of HumVee Mom's to pass. I felt a sudden stiff jolt from behind. Once I assured myself that it was not an RPG, I turned and saw that another vehicle, code name Zulu, had struck me from behind. I pulled onto a side trail, fully expecting Zulu to follow me so that we could exchange classified indemnity information. To my shock and awe, Zulu sped from the scene without exchanging international recognition codes.

Pulling my self together, I followed Zulu in hot pursuit until such time as I could visually confirm Zulu's license plate number; a journey of some 3 clicks. I then discontinued pursuit and signaled the M.P.'s for assistance.

As I waited for the cops. my neck, low back and shoulders began to ache. A pain began to shoot down my left arm. After completing my rendezvous with the Military Police, I proceeded to the nearest MASH unit for treatment. The MASH (BHMEC) saw me with dispatch and prescribed medications for a sprained neck and muscle spasms which were to be filled at my local drug care provider. Subsequently, after having turned in the script for fulfillment, I returned to Station Walgreen's to collect my ration.

Following 72 minutes of further investigation, it was learned that a. MASH had prescribed appropriate medications for my injuries, but the prescription as written was not in my name; b. Station Walgreen's had filled the medical order properly but in the wrong name. This error resulted in the personnel at Station W being unable to locate my ration. The results of this operation are summarized as follows:

1. There is at least one driver in Memphis being sought by the MPD for leaving the scene of an accident.
2. My MX-5 is not intended to be smashed from behind.
3. The most well trained MASH can put the wrong patient ID sticker on a prescription.
4. Miss-identifying a patient on powerful drugs can cause further injuries to the patient, or worse.
5. Memphis Injury Lawyer has days when he should have stayed in bed.

Over and Out.

Last week a North Memphis family reported that a neighbor's two pit bulls entered their home and attacked them. Memphis has seen her citizens mauled to death by pit bulls in the past. As a trial lawyer who regularly practices in all Shelby County courts, I have seen my clients injured by dogs on occasion. However, as a dog lover myself and a Tennessee resident, I wondered whether or not some breeds of dogs were more likely than others to attack Memphis residents.

For example, in 1990 Betty Lou Stidham was attacked and mauled to death by two pit bulls in a quiet Memphis neighborhood. In this case, the dogs had a history of violent tendencies. They had previously attacked their owner sending him to the Emergency Room of a local hospital for treatment of his injuries.

Jefferey J. Sachs, M.D., MPH for the United States Centers for Disease Control studied various breeds that had injured or killed people. In Sachs' article, he analyzed many breeds of dogs that had attacked people over an extended period of time. This article is best summarized by a Chart of Bites by breed that is a part of the results of the study. As you can see, far and away the most dangerous breed was the pit bull. For example, animal control officers must approach this breed with the following event in mind:

In response to these kinds of situations, the Tennessee Legislature in 2007 amended the existing laws respecting animals that are likely to cause harm to others. Under T.C.A. 44-8-413, new standards were set with an eye towards protecting persons and property from the dangers we have seen above. The law requires owners to keep their animals under "reasonable control" and to prevent them from "running at large". The most interesting feature for lawyers, and perhaps the injured, is that the owner can be liable even if the dog has never shown violent or dangerous characteristics prior to the event in question. This new act may well protect a valuable asset: our peace of mind and our future safety.

The Memphis Commercial Appeal reported today that a young man has been charged with a crime in the accidental hunting incident that I commented on yesterday. As a trial lawyer who handles both personal injury and criminal cases in Tennessee, I thought that the interplay between these two types of matters, might well illustrate what can happen a case such as this.

The Arrest Affidavit charges the hunter under:

39-13-103. Reckless endangerment. (a) A person commits an offense who recklessly engages in conduct that places or may place another person in imminent danger of death or serious bodily injury. (b) Reckless endangerment is a Class A misdemeanor; however, reckless endangerment committed with a deadly weapon is a Class E felony.

Reckless conduct is generally defined, in both the criminal and civil law contexts, as being a conscious disregard for the health, care or safety of others. You can see how closely these issues are connected by reading the Tennessee Pattern Jury instruction of the law that would be given to the jury to guide their deliberations.

From this incident you can see that a criminal charge, if it results in a guilty plea, can have a parallel civil action attached to it. If the injured person files such a lawsuit, the criminally charged defendant may not have significant assets from which to recover on the civil lawsuit side. However, many Homeowner's Insurance policies and some Renter's Insurance policies, may provide a source of not only payment to the injured party, but also can require the insurance company to provide a defense attorney to the hunter when (and if) he or she is sued civilly. This is yet another case where a bit of prior thought can help to protect your most precious asset: your future.

Yesterday, a Memphis area man was accidentally shot while hunting in Shelby County. As a trial lawyer who handles personal injury cases, it occurred to me that some may wonder whether or not this could be the basis for a negligence lawsuit. Needless to say, we would all hope that events such as this never happen at all. But if sportsmen are not extremely cautious, others can be injured in West Tennessee's sporting areas.

In 2007, the Tennessee Wildlife Resources Agency Report stated that 11 persons were either wounded or killed in hunting related accidents. The average age of the victim was 51 years of age and the average distance from the victim to the source of the shot was 21 to 50 yards. While details are still quite sketchy, it has been reported in the local media that deer hunters fired their rifle or shotgun from several hundred feet away striking the victim. This happened at approximately this location. You will note the close proximity to subdivisions and busy streets:

Negligence is defined in the law as the breach of a known duty that is the direct cause of an injury or damage. Please remember that when you are handling a firearm that you are engaged in an ultra-hazardous activity. When you pull the trigger, you may miss the target and if you have not considered what might lay beyond, then you could be held liable in a court of law. many helpful tips for safety in hunting can be found at the TWRA website.

Each year, and it seems to always surround the holiday season, Memphis and our adjoining West Tennessee neighbors suffer some sort of a tragic loss. The Memphis Commercial Appeal (See this article), reported the deaths of three family members in all too short a period of time. What caught my eye was the incident near Nucor Steel. A personal injury client of mine reported to me just last week that this area has had numerous automobile accidents in the recent past. As a result of this article, I decided to investigate further because a few years ago, I had a jury trial involving such a case.

In the case in which I was involved as the trial lawyer, a Memphis LG&W worker who had just come off of a double shift, fell asleep at the wheel on Kirby Parkway in southeast Memphis. His car crossed over the center line and hit my West Tennessee client's car which resulted in severe personal injuries to both the driver and the passenger. Thankfully, neither of my client's died. Upon further investigation, I discovered that the MLG&W worker had been treated previously for a condition (sleep apnea) that caused him to unexpectedly fall asleep. Interestingly, the Tennessee appellate court held beginning with McCall vs. Wilder, that if a driver did not know (or have reason to know) of his or her medical problem before the crash, then the jury may consider this fact in comparing the fault of the parties.

As you can see from these maps, the site of this deadly crash is in an isolated and industrial area of President's Island in Memphis. The relatively flat terrain and sparse traffic is an open invitation for some persons to put the pedal to the metal. There is no certainty at all, at this point in time, that speed, alcohol or other factors contributed to this horrific situation.

View Larger Map

We all have a tendency to think when we read of an event such as this that there must be some fault involved. While this is frequently true, it is equally true that the deaths could have resulted from an unavoidable accident. Time will tell us all how this senseless loss of life happened. In the mean time, all responsible observers will support the family and withhold making judgments of blame or fault.

The Mid South is infected with many national personal injury problems. Recently a West Tennessee client brought a matter to us that required the special skills of a Memphis trial lawyer. This gentleman had a defective product case that is rather unique. Not only was his life completely upset by a dangerous and defective product, but his family had also suffered untold worry and anxiety. The hip joint bears most of the weight of the upper body. So when this hip replacement exploded inside of him, it was important for my client to come to Memphis to seek qualified and competent legal advice.

My West Tennessee client felt a sudden pain in the hip area along with a popping noise that went along with intense pain. The solution to this issue was another surgery. This surgery is explained, as follows:

The problem in these situations is that with every operation the chance increases that the hip implant, defective or not, will not last as long as it was designed to do. The FDA announced a major recall in 2001 due to fracturing problems, this time involving St. Gobain Desmarquest implants. This manufacturer recalled its implant with a ceramic head just prior to an announcement by the FDA. The reason for the recall was a higher fracture rate for this product in several patients a few years following surgery. Fortunately only a small percentage of the implants had such a sudden and catastrophic failure.

In the image above, you can see the broken head of the implant (upper left) and the pieces of the broken ceramic material embedded into the tissue (lower right). Defective products are those products that are unreasonably unsafe or inherently dangerous for their intended purpose. These dangers can be proven in court if the defect or design failure causes harm or an increased risk of harm to the consumer or if the consumer's expectation of the safe use of the product is not met.

There are a variety of legal theories that can be the basis for a products liability lawsuit under the facts that we are discussing. Some of these are:

1. Breach of Warranty

2. Negligence

3. Strict Liability

As with any plaintiff's case, in order for an injured person to recover for their injuries and damages, the plaintiff must first prove liability or fault. The items of damages in these cases, as in most others, can include:

1. Medical expenses
2. Out of pocket expenses
3. Past lost wages
4. Future lost wages
5. Loss of earning capacity
6. Pain, suffering, anxiety, emotional upset

The statute of limitations is the time limit within which a lawsuit can be filed after the damage or injury occurred. This time limit in Tennessee is one year from the date that the injury happened or one year from the date that the plaintiff knew or should have known that he or she was injured as a result of the manufacturer's fault. If you or someone that you care about has been injured by an event such as this, seek immediate medical and legal advice. Please remember to protect your most valuable asset: your future.

I have found through the years as a Memphis trial lawyer that many clients (and juries) fail to understand just how devastating a so called "whiplash" injury can be. Many crashes happen every day in Tennessee that result in a trip to a Shelby County doctor or hospital. Sadly, many victims of this injury fail to recognize until some later time, just how debilitating such an event can be. I can not tell you how many times that I have heard,"Well its only a whiplash." I hope that you will take a moment to watch the following video. If you fail to cringe while seeing this impact, then you are a stronger person than I.

This diagram illustrates the "common areas" where a victim feels discomfort. However, the Signs & Symptoms of Neck Injuries are far more revealing. Many persons have pain in the front of the neck, jaw and even the front of the shoulders as well. Pain in the center of the chest is a well documented result of impact from your own seat belt strap. Needless to say, short of never getting into a car, these crashes have become a part of everyday life. However, as the following video demonstrates, your choice of vehicle can make a substantial difference in the outcome for you as a driver or passenger.

If your car is more "crash worthy" than others, you may do far better than in a car that is not designed to withstand the inevitable accident. If you are injured, do not listen to anyone who advises you not to seek immediate medical attention. After you are being treated there will be plenty of time to consider your legal rights concerning the accident and the safety -or lack of safety- of your own vehicle. Protecting your future is important, but seeking prompt and competent medical care has to come before all else.

Memphis, much like all of Tennessee and the rest of the United States, seems to be focused on staying trim. Many in Shelby County and the Mid South regularly use a variety of diet products to keep their weight in line with their self image. The dangers of diet drugs aside, other dangerous or unsafe products do exist in the marketplace. Yesterday, Lean Cuisine was recalled due to the likelihood of injury if eaten.

This is recall, that could affect Memphis and all of Tennessee, is referred to as a Class I recall. This is defined as:

This is a health hazard situation where there is a reasonable probability that the use of the product will cause serious, adverse health consequences or death.

Nestle, a Utah based company, has recalled nearly 900,000 pounds of their product which may contain pieces of blue plastic which could be harmful if ingested. These items can be identified, as follows:

The following products are subject to recall:

* 9.5-ounce packages of “LEAN CUISINE PESTO CHICKEN WITH BOW TIE PASTA” brand frozen meals. Printed on each side of each package is a production code of “8280595912” as well as a use-by date of “Best Before MAY 2010.”
* 10.5-ounce packages of “LEAN CUISINE CHICKEN MEDITERRANEAN” brand frozen meals. Printed on the side of each package is a production code of “8231595912” or “8241595912” as well as a use-by date of “Best before SEP 2010”; a production code of “8263595912,” “8269595911” or “8274595912,” as well as a use-by date of “Best before OCT 2010”; or, a production code of “8291595912” or “8301595912” as well as a use-by date of “Best before NOV 2010.”
* 12.5-ounce packages of “LEAN CUISINE CHICKEN TUSCAN” brand frozen meals. Printed on the side of each package is a production code of “8234595911” and a use-by date of “Best before SEP 2009”; a production code of “8253595911” or “8269595912” as well as a use-by date of “Best before OCT 2009”; or, a production code of “8292595911” or “8296595911” as well as a use-by date of “Best before NOV 2009.”

Each package also bears the USDA mark of inspection as well as the establishment number “EST P-9018.” The frozen chicken meals were produced on Aug. 18, Aug. 21, Aug. 28, Sept. 9, Sept. 19, Sept. 25, Sept. 30, Oct. 6, Oct. 17-18, Oct. 22 and Oct. 27 and were distributed to retail establishments nationwide.

If you have any of these unsafe products, DO NOT USE them. Please make reference to the following web page and report the product: Lean Cuisine Recall Info In the event that you or your family are injured from this unfortunate situation, we are ready to help protect your future safety and security.

It is that time of year again. Memphis children have begun falling asleep with visions of sugar plums dancing in their heads. West Tennessee parents, on the other hand, have begun the difficult task of finding Christmas goodies that are both safe and appealing. Each year in Shelby County, the hospital emergency rooms begin to see children who are injured by everything from acrobat costumes to xylophones. Unfortunately, many of these injuries are avoidable.

The Consumer Products Safety Commission (CPSC) publishes reports each year that detail the types of dangerous products that have either been recalled because of potential dangers or products that have caused serious injury or death to our kids. For example, in 2007 18 children died due to a defective or dangerous toy. Over 100,000 emergency room visits for children have been linked to this same cause. Injured Kids Report

To get some understanding of the breadth of this problem, consider that the following products have been recalled due to safety concerns in just the last few months: Rage Wireless Guitar controller for use with the Wii gaming system; Swimming pool dive sticks and a child's xylophone.CPSC Report

Now that we know about the issues, we turn to prevention. According to the CSPC, the best tips for holiday shopping safety are:

* Scooters and other Riding Toys – Riding toys, skateboards and in-line skates go fast and falls could be deadly. Helmets and safety gear should be worn at all times and be sized to fit.

* Small Balls and other Toys with Small Parts – For children younger than age three, avoid toys with small parts, which can cause choking.

* Balloons - Children under eight yrs. can choke or suffocate on un-inflated or broken balloons. Keep un-inflated balloons from children. Discard broken balloons at once.

* Magnets – For children under age six, avoid building or play sets with small magnets. If magnets or pieces with magnets are swallowed, serious injuries and/or death can occur.

* Chargers and Adapters – Charging batteries should be supervised by adults. Chargers and adapters can pose thermal burn hazards to children.

Once the gifts are open:

* Immediately discard plastic wrappings on toys before they become dangerous play things.

* Keep toys appropriate for older children away from younger siblings.

* Pay attention to instructions and warnings on battery chargers. Some chargers lack any device to prevent overcharging.

In the event that prevention is not successful, CPSC Chairman's Advice, then the wise parent must get help to protect their children from the results of these dangerous products. This area of the law is difficult and requires a depth of experience. We are here to help.

Memphis residents should remember that on April 1, 1989 eight people were killed when their car fell into the Hatchie River just north of Shelby County. After an exhaustive investigation, the National Transport Safety Board (NTSB) found that these deaths resulted from negligence. The NTSB found that if the State of Tennessee had given attention to serious problems with the bridge that were discovered by state inspectors long before the accident, then these deaths could have been avoided.

This frightening image shows the crash of the bridge into the murky water. As a trial lawyer, I have seen such events before and it always send a chill through my body. Negligence is the breach of a duty of care which is the cause of damages. As tax payers, we all hear of the so-called frivolous lawsuit. In my experience, some cases have far more merit than others. However, prior knowledge or the duty to investigate the safety of a bridge cannot be thought of as anything but proper.

The point of this article is to focus our attention and empathy on this week's news. Some of the families of the victims of the Minneapolis bridge collapse that happened August 1, 2007 have filed suits for wrongful death. In its interim NTSB pointed to an error in the design of the 40-year-old bridge: 16 gusset plates — the components that helped connect steel beams — in the center span were designed at only half the required thickness, and fractured. The following horrific scene could have been avoided if the design were proper and the inspections of the bridge had been thoroughly conducted.

Apparently the State of Minnesota did not take the necessary precautions in either its design approval, construction,inspection and, most important of all,...the protection of the future of its citizens.

As a Memphis trial lawyer and father, I am passing along to all Shelby County parents, as well as parents in the Mid South, the following dangerous product recall. Please check your medicine cabinets and diaper bags!

Johnson & Johnson • Merck Consumer Pharmaceuticals Company (JJMCP) is voluntarily recalling approximately 12,000 units of Infants’ MYLICON® GAS RELIEF DYE FREE drops (simethicone-antigas) non-staining sold in 1 oz. plastic bottles that were distributed after October 5, 2008 nationwide. The company is taking this action in consultation with the U.S. Food and Drug Administration (FDA). Although the potential for serious medical events is low, the company is implementing this recall to the consumer level as a precaution after determining that some bottles could include metal fragments that were generated during the manufacturing process. If any medical events were to occur, most are expected to be temporary and resolve without medical treatment. Parents who have given the product to their infant and are concerned should contact their health care provider immediately.

About MYLICON® drops

Infants’ MYLICON® drops, the #1 pediatrician-recommended anti-gas medicine, relieve the discomfort of infant gas frequently caused by air swallowing or by certain formulas or foods. For more information, visit: www.mylicon.com.

Johnson & Johnson • Merck Consumer Pharmaceuticals Co. is a U.S.-based 50/50 joint venture formed to develop and market non-prescription products derived primarily from Merck & Co., Inc. prescription medicines, as well as products licensed and acquired from outside sources. Brands marketed under this joint venture include Infants’ MYLICON®, MYLANTA®, PEPCID® Complete and PEPCID® AC.

The two lots of Infants’ MYLICON® GAS RELIEF DYE FREE drops non-staining 1 oz. bottles included in the recall are:

Code # 71683791111-1
Lot # SMF007
Exp 09/10
Product: Infants’ MYLICON® Gas Relief Dye Free Non-Staining Drops 1 oz.

Code # 71683791111-1
Lot # SMF008
Exp 09/10
Product: Infants’ MYLICON® Gas Relief Dye Free Non-Staining Drops 1 oz.

Consumers can find the lot numbers on the bottom of the box containing the product and also on the lower left side of the sticker on the product bottle.

Consumers who purchased Infants’ MYLICON® GAS RELIEF DYE FREE drops non-staining included in this recall should immediately stop using the product and contact the company at 1-800-222-9435 (Monday – Friday, 8:00 a.m. – 8:00 p.m. EST) or via the internet at www.mylicon.com for instructions regarding how to dispose of the product and request a replacement or refund.

Infants’ MYLICON® drops are sold over-the counter, in retail stores and pharmacies, as an anti-gas medicine to relieve the discomfort of infant gas frequently caused by air swallowing or by certain formulas or foods.

The recall does not affect any Original Infants’ MYLICON® GAS RELIEF products (1/2 oz. or 1 oz. size) or Infants’ MYLICON® GAS RELIEF DYE FREE drops non-staining (1/2 oz. size).

The manufacturer has instructed retailers and wholesalers to return their inventories.

Adverse reactions or quality problems experienced with the use of this product may be reported to the FDA's MedWatch Adverse Event Reporting program either online, by regular mail or by fax.

Online: www.fda.gov/medwatch/report.htm

Fax: 1-800-FDA-0178

Tennessee automobile law and that of other states has been severely impacted by the advent of video cameras. Imagine that the following scenario happened in Germantown, Tennessee.

A police officer attempted to pull over a car for speeding. Victor Harris fled in his vehicle, initiating a high-speed car chase. Attempting to end the chase, Deputy Timothy Scott rammed Harris's vehicle with his police cruiser. Harris crashed and was rendered a quadriplegic. Harris sued Scott in Federal District Court, alleging that Scott had violated his Fourth Amendment rights by using excessive force. Scott claimed qualified immunity as a government official acting in his official capacity. Qualified immunity means that a person cannot be sued for injuries if that person has acted reasonably within his duty as a police officer.

In order to show that a government official is not entitled to qualified immunity, a plaintiff is required to prove that the official violated a clearly established constitutional right. The lower Court ruled that Scott's actions constituted an unreasonable seizure in violation of the Fourth Amendment to the United States Constitution. Because there was no imminent threat - Harris remained in control of his vehicle and the roads were relatively empty - Scott's use of deadly force was unconstitutional. The Appellate Court ruled that the limits on deadly force in a high speed chase were "clearly established." The case was then appealed to the Supreme Court.

1) Does a police officer who stops a high-speed chase by ramming a fleeing suspect's car violate the protection against unreasonable seizure?

2) Was it "clearly established" in federal law that an officer violates the Fourth Amendment to the Constitution by using deadly force during a high-speed chase?

Before you decide, please take a look at the actual video of the chase in question. Please note that this has been edited to the critical portions but no important elements have been removed:

The Courts are often chastised for protecting the rights of the wrongdoer and ignoring the realities of police work. We have all heard the news reports of a Defendant being exonerated due to a "technicality". The reality is that Judges are mindful of the rights and duties of all sides to an issue. In this case, the Court ruled 8-1 that Scott's actions were reasonable under the Fourth Amendment. The opinion by Justice Antonin Scalia relied heavily on a videotape of the car chase, which it said contradicted the plaintiff's claim that he was driving responsibly even while being pursued by the police.

The majority of the Supreme Court held that "[...] it is clear from the videotape that [Harris] posed an actual and imminent threat to the lives of any pedestrians who might have been present, to other civilian motorists, and to the officers involved in the chase." The opinion weighed the need to prevent the harm Harris could have caused against the high probability that Harris himself would be harmed by Scott's use of force. It also took into account Harris's culpability for starting the chase in the first place. The Court concluded that it is reasonable for a police officer to use deadly force to prevent harm to innocent bystanders, even to the point of putting the fleeing motorist at serious risk of injury or death.

The full opinion of the United States Supreme Court can be found at Scott v. Harris opinion.

As Halloween approaches, a parent’s pleasure while watching their precious children during the trick-or-treat tradition must be tempered by concerns for their childrens' safety. As our kids frolic through the neighborhoods dressed as goblins or ninja’s, they are exposed to the dangers of passing automobiles. It is impossible to forget the horrific headlines that report the death or serious injury of a small child who while darting to his or her destination becomes the victim of a bone-crunching collision with a car’s steel fender.

In Tennessee, parents faced with the trauma and huge medical expenses of these events will oftentimes seek the advice of a qualified personal injury lawyer. Having counseled Mom’s and Dad’s who are in this impossible situation, I have come to realize that many of our neighbors don’t understand our law that is designed to balance the future needs of our children with the responsibilities of adult drivers. How many times we all heard it said that: “There is nothing that we can do about this crash….Johnny or Susie was walking next to the curb wearing a dark costume when the accident happened.” As with all things in the law, there are few absolutes and each factual situation must be evaluated individually.

In 1997, our courts decided a case involving a pedestrian who was wearing darkly colored clothes when struck by a car. In Lowery v. Franks, a Jackson, Tennessee adult, James Franks, was walking along the side of an unlit road when he was struck by a car being driven by Emily Franks. Mr. Franks was wearing darkly colored clothes at the time of his death and Ms. Franks testified that she could not have seen Mr. Franks due to this fact and the lack of lighting adjacent to the roadway. The court dismissed the case saying that Ms. Franks could not be held liable for killing a man that no one could have seen under this set of facts. In other words, that Mr. Franks contributed to his own death by choosing to walk down the side of the road dressed in such a way that he was invisible to others in the darkness that night.

However, in my opinion, this result might well have been different had Mr. Franks been a 4 year old child. Generally, in Tennessee the fault of the Plaintiff (the injured party) is compared to the fault of the Defendant (the party who injured the Plaintiff). When the jury makes this comparison, the Defendant’s fault must exceed the fault of the Plaintiff. In other words, the driver of a car in the situation discussed in this article must be 51% or more at fault as compared to any fault of the pedestrian. But, and this is a huge but, if the injured person is a 4 year old child and suit is brought in his or her name, then the child’s fault can not be compared to that of the at fault driver. In Leach vs. Metro Nashville, the Court in 2002 instructed us all that in Tennessee a child of such tender years is presumed by the law to be incapable of being negligent. Therefore, no comparison can be made in this fact pattern.

While we all want our children to enjoy their tender years, there is not a person among us who would wish a crippling and costly injury on a child. The corollary to this hope is that no one would wish such a crushing financial and emotional burden upon any parent. Sadly, these events occur when a strip or two of reflective tape this Halloween can help avoid a tragedy. However, when all else fails, parents do have legal recourse to protect the most important resource that a child can possess: his or her future.

The days are past when the search for medical information requires a trip to the local hospital or doctor's office. A wealth of exhaustive information is now available via the World Wide Web or through digital means. Tennessee Vital Records.

Medical Records are now maintained in a variety of different formats. Of course, there is the hard copy which most health care providers still maintain. However, with the advent of digital technology and the internet, new forms of medical records have come to the fore. There are a variety of different software programs which are used by health care providers to archive medical records. Some hospitals use images which are either digitally created or digitally scanned to a server where the images can be viewed and, if necessary, printed or downloaded. Some health care providers are uploading medical records to secure internet sites where the images stored can likewise be viewed and printed, should the necessity arise. However, there are other digital utilities which can be utilized for a physician to catalog his records. Both pocket PC’s and PDA’s have the ability to store patient information and allow for the physician to enter new or different information at the point when services are rendered.

An additional consideration is the utilization of X-rays, CT scans, MRI films and PET scans in digital formal. Some medical records custodians are now able to deliver copies of these various images via the internet or on CD. While the medical community is investing huge sums of money in developing these technologies, most medical records are still maintained on hard copy. When one searches for medical records, there are several different types of medical records which can be overlooked.

The following is intended as a non-exclusive check-list of various medical records, which can be accessed and used for settlement, trial or in an administrative context:

Government Records
Veterans Administration
Health Insurance Claim Records
Health or Life Insurance Physicals
Disability Insurance Records
Federal Aviation Administration
Department of Transportation
Law Enforcement Qualification Examinations
United States Military Records
Private Hospitals & Doctor's Offices
Fitness for Duty or Return to Work Examinations
Pre-Employment Physical Examinations
Third-Party Claims Administrations
Divorce and Child Custody Cases
Genetic Counseling
Dental Examinations
Worker's Compensation Settlement Documents
Home Health Care Records
Ambulatory Surgery Records
Prior Claims and Discovery

One commonly ignored element of complete medical records are diagnostic studies themselves. If a CAT scan has been performed or any other form of tomography used, there exists either a visual representation or a video of the procedure. This is especially true in arthroscopic procedures where a video tape is created at the time of the procedure. This can have an excellent impact on a fact finder for something as minor as the arthroscope of a knee.

There are many methods by which counsel can assure that the records are complete. There are several different software applications which exist solely for the purpose of making a medical records chronology and identifying any gaps which may exist. However, the tried and true method is to prepare what amounts to a spreadsheet that analyzes the dates that services were performed and the bills for those dates of services. These programs can also tracks referrals to and from health care providers.

It must remembered that in order to reach a fair and just result, the injuries, and the permanency of those injuries, must be established. Speculation or guessing is not allowed. Therefore, in order to protect that which you value most, one must work hard to acquire this all important data in a form which can be verified and admitted into evidence.

All medical records vary in both quantity, quality and precision. Generally speaking, it has been the my experience that out-patient records are far less legible than in-patient records, with the possible exception of physician’s orders to nursing staff. With the advent of the Health Insurance Portability and Accountability Act (HIPAA), there is a national mandate to standardize the format of both in-patient and out-patient medical records.

I believe that it is helpful to have a full understanding of the institutional roadblocks to acquiring medical records. Tennessee Department of Health HIPAA Privacy Policies are adding to the paperwork that we all have to sign at the doctor's office. While there have been occasions in the past where there have been privacy violations of a person's medical records, the broad sweep of HIPAA has, in my opinion, done more to frustrate necessary uses by the patient than it has to protect a justifiable privacy interest.

Having said that, health care providers have a justifiable concern that inadvertent disclosures could result in heavy civil penalties and liability. An indication of the governmental approach to this matter is revealed when you consider that the enforcement arm for HIPAA is the Office of Civil Rights.

A vigorous effort must be made by the patient or counsel to acquire the necessary medical records to support the claim or injury with the least amount of difficulty. This process begins with a properly worded and executed Authorization for Release of Medical Records which is normally provided by the lawyer's office. There is hardly a lawyer alive who objects to his client's help in gathering all of these records. Please remember that not only are the medical records a critical part of any settlement or trial, but the bills from the health care providers are equally important.

Be your own best advocate.Tennessee Medical Records Hints Keep all medical bills and Explanation of Benefits reports as they arrive. If possible, arrange for these documents to be sent to your email in PDF format for easy retrieval and transmission to your lawyer. Remember that for you to get a fair result, it must be proven that the other party's fault was the direct cause of the injuries from which you suffer and that these injuries are both real and properly documented. By doing these relatively simple things, the client-patient can protect that which is valued the most, one's future.