In a letter written to Chief Justice John Roberts, former Judge James Dannenberg, a retired Hawaii state judge, explained why he has lost faith in the court. Having been a member of that bar since 1972, Judge Dannenberg compared the current Supreme Court with its “boundless solitude for the rights of the wealthy, the privilege, and comfortable,” to a court in the early 20th century, a period of profound judicial activism that favored big business interests over such issues as child labor, fair wages and labor regulations.
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Student Ethan Roser, only 19 years old, was tragically killed in April 2017 while volunteering at a college track and field meet. He was struck in the head by a 16 pound hammer thrown during a practice exercise. When he was struck, Ethan was standing in an area outside the field of play, near the spectator line.
As shown in the above photo, the “hammer” consists of a metal ball attached by a steel wire to a grip.
On March 21, 2019, Jeffrey E. Martin of MARTIN LAW, LLC and David J. Schwaner of SCHWANER INJURY LAW filed suit in federal court against the National Collegiate Athletic Association for their failure to take steps to protect Ethan after they were put on notice that others had previously been injured in other hammer throw events. Amongst the allegations against the NCAA are that they failed to enact sufficient minimum size requirements for hammer cages; failed to enact safety rules for the Hammer Throw event which they knew or should have known created an unreasonable risk of harm to others; failed to require the presence of trained officials at track and field events; failed to warn Ethan of the unreasonable risk of harm posed by standing in the area where he was struck during warm-up throws; and failed to warn Ethan of the unreasonable risk of harm posed by the use of a hammer cage meeting only the minimum requirements for height.
The hammer cage surrounds the athlete throwing the hammer. These cages were designed to prevent the hammer from exiting the thrower’s hands in unprotected directions, such as out of the back, sides, and in dangerous angles from the circle. Here, the height of the cage was insufficient to prevent the hammer’s trajectory from reaching volunteers, such as Ethan, standing outside the field of play.
Ethan’s parents are struggling with every parent’s worst nightmare: the death of their beloved child. Young Ethan had his whole life ahead of him. The violent nature of Ethan’s last moments make his loss even more unbearable. Ethan’s siblings will feel his absence every day.
Their hope is that no other family suffer this unimaginable and preventable tragedy. Our shared desire is that this lawsuit will trigger a change for the better: to finally enlighten the NCAA that they need to review and revise their policies and procedures and adopt previous safety recommendations to increase the size of the cage around the hammer throwers to prevent errant throws from escaping and fatally injuring anyone else.
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After approximately 5 years of litigation, the case involving a 10 year old girl who fell 18 feet when an inflatable slide that was not secured inside the school gym tipped over has resolved for $1,945,000.00. The supplier of the slide and the school PTO which was responsible for organizing and supervising the end of the year 5th grade school picnic in May 2013 both contributed to the settlement. After having arthroscopic surgery in November 2016 to address soft tissue impingement following healing of her left ankle fracture, the girl developed a neuropathic pain condition known as complex regional pain syndrome (CRPS). The punishing pain associated with CRPS is often treated by use of a neurostimulator implanted into the patient’s body. Such a device usually will not cure the pain entirely but merely lessen its severity.
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Though the majority of births occur without incident, each year over 50,000 women are severely inured and approx. 700 die. As shown in the article by Alison Young that appeared today in USA Today, more than a half-million pages of internal hospital quality records regarding more than 150 women whose deliveries went terribly wrong have been obtained. Those documents and interviews revealed “a stunning lack of attention to safety recommendations and widespread failure to protect new mothers.” Such simple yet vital determinations as the amount of blood loss and whether mothers with dangerously high blood pressure received proper medication timely were overlooked. This lack of attention to life-saving measures has occurred in both large and small institutions as well as physicians’ offices when they failed to act on signs and/or symptoms of complications occurring during and after pregnancy.
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By a vote of 218 to 210, the US House of Representatives narrowly passed HR 1215 entitled “Protecting Access to Care Act of 2017” but it does not actually protect access to care. This bill establishes provisions governing health care lawsuits where coverage for the care was provided or subsidized by the federal government, including through a subsidy or tax benefit. The bill has a number of objectionable provisions but perhaps the most objectionable and unfair is that it limits noneconomic damages to only $250,000. Juries will not be informed of this limitation.
This GOP Bill Undermines the Ability of the Victims of Medical Malpractice and the Victims of Defective or Dangerous Medical Products to Be Made Whole.
Despite the fact that Republicans often refer to H.R. 1215 as a “medical malpractice” bill, the Republican bill applies its provisions not simply to “medical malpractice” cases but to all “health care lawsuits.” For example, in addition to medical malpractice, the bill’s provisions apply to cases involving for-profit nursing homes and long-term care facilities. So no matter how much an innocent victim of medical malpractice or nursing home abuse suffers – including pain and suffering, disability, disfigurement, loss of limb or lives – this legislation limits the recovery to only $250,000.
Supporters argue that such limitation is necessary due to skyrocketing malpractice insurance premiums which, they argue, increase health care costs. However, the truth is that the GOP bill is outdated; no evidence of a malpractice insurance “crisis” today. Medical malpractice liability insurance has historically attracted the attention of Congress during industry “crisis” periods, which occurred during the mid-1970s and mid-1980s. These periods were marked by significant increases of insurance premiums and difficulties in finding malpractice insurance for certain medical specialties. However, all available evidence shows that the malpractice insurance market is not in crisis today. Indeed, according to a 2016 article in a medical malpractice insurance industry trade publication, “the medical malpractice insurance industry is continuing its unprecedented run of consecutive profitable years in 2016.” That same publication, describing a survey of medical professional liability insurance rates, noted that for the “vast majority (75 percent) of [medical malpractice] insurers in the survey, rates have remained flat between 2015 and 2016.” This is just another measure to deprive injured people and families from being fairly and reasonably compensated for the effects of medical and other health care negligence.
It never ceases to amaze me that in business litigation, one company can sue another for a trademark infringement or contract dispute, for example, and reap millions or even billions of dollars in compensation and other than noteworthy mention of the result nobody bats an eye (even though you can reasonably expect that the costs will be passed onto consumers). However, if an innocent surgical patient, for example, suffers the loss of sight, the loss of a limb, or is horribly burned from a defective medical device, members supporting such measures want to limit that injured person and his family’s ability to receive just compensation. Perfect justice would be turning back the hands of time and preventing the injury from ever happening. Unfortunately, since we cannot access perfect justice, we are limited to monetary compensation. Such compensation can help families put their lives back together from catastrophic injuries.
With such questionable support, patient advocates and all of us who fight to uphold the 7th amendment (the right to a trial by jury) feel hopeful that Senate Democrats and Republicans will vote against the bill. While the date of a Senate vote is not yet known, I cannot stress enough how important it is to contact your Senators to voice your opposition to the bill.
Please contact your Senators and ask them to vote NO on this anti-civil justice legislation.
According to the independent Congressional Budget Office, Republican plans to repeal and replace the Affordable Care Act could cause 24 million Americans to lose health insurance. The Congressional Budget Office (CBO) is a federal agency within the legislative branch of the government that provides budget and economic information to Congress.
The Republican legislators are rushing too quickly to make good on their promise to repeal and replace the Affordable Care Act. Time for all to step back and re-assess what is being proposed. Although there may have been problems with the Affordable Care Act – just like there were problems with other programs such as Medicare at its inception, it would likely make more sense to fix what was wrong rather than scrap the whole program.
To read more about what the CBO believes will be the effect of the proposed plans see: https://www.cbo.gov/
House GOP quietly advances key elements of tort reform
House Republicans are advancing a series of bills that would make changes to the civil justice system long sought by doctors and U.S. corporations, including a cap on some medical malpractice awards and new roadblocks for classes of people seeking to sue jointly to address harm. The U.S. Chamber of Commerce and other business groups are promoting the measures, arguing that courts have grown overly tolerant of frivolous and fraudulent claims. Civil rights and consumer groups oppose the measures, saying they would severely limit the ability of average Americans to pursue legal remedies from powerful institutions.
Their thought process is flawed as there are judicial procedures in place to do away with frivolous and fraudulent claims, and no one wants to invest their time and resources in baseless claims. MOREOVER, THESE MEASURES DO NOT DISCRIMINATE BETWEEN VALID, MERITORIOUS CLAIMS AND WOULD EFFECTIVELY DESTROY OUR CONSTITUTIONAL RIGHT TO TRIAL BY JURY.
One proposal would limit monetary awards in medical malpractice suits to $250,000 for noneconomic damages, which include pain and suffering. Currently, there is no federal limit on medical malpractice claims, and awards can run into the millions of dollars. Late Thursday, the House narrowly passed two of the four measures along party lines: The Innocent Party Protection Act would shift some claims to the federal system from state courts, which tend to be more sympathetic to plaintiffs. The Fairness in Class Action Litigation Act would permit class-action lawsuits to proceed in federal court only if every person in the class had “an injury of the same type and scope.”
A third bill is expected to come before the chamber Friday: The Lawsuit Abuse Reduction Act would require federal judges to sanction attorneys whose claims are later found frivolous. In a letter to congressional leaders, opponents said the measure would have a “chilling effect” on a broad range of complaints, including civil rights violations, employment discrimination and environmental abuses.
The House has approved similar measures in recent years only to see them stall in the Senate. But the Senate may be more inclined to seriously consider the measures, advocates said, with a Republican president inclined to sign them in the White House.
During House debate Thursday, Rep. Lamar Smith (R-Texas), who introduced the Lawsuit Abuse Reduction Act, said the effort is intended to rebalance a justice system that has tilted too far in favor of plaintiff’s attorneys and their clients. “There are so many frivolous lawsuits, ruining people’s reputations, robbing people of their livelihoods. We have to do something to reduce these junk lawsuits,” Smith said. “Often they are filed with the intention of getting a settlement. It’s a form of legal extortion.”
Most Democrats oppose the measures, arguing that they would slam shut the courthouse doors to deserving plaintiffs. Many also complained that GOP leaders were moving the bills through the Capitol at breakneck speed, without the close analysis and public debate typically afforded major legislation.
None of the four proposals has been aired in a congressional hearing. The House Judiciary Committee quietly voted along party lines to approve them over the past several weeks. House leaders “are turning the legislative process into a kind of subterranean operation,” said Rep. Jamie B. Raskin (D-Md.), a leading opponent of the bills. “While the populace is spellbound by [Trump], the conservatives in Congress are dismantling access to justice and our tort civil liability system.” Even some Republicans were critical of the lack of hearings.
“We need to be as open and transparent as possible. This was the complaint with Obamacare; that it was forced down our throats without enough discussion,” said Rep. Ken Buck (R-Colo.), referring to the passage of President Barack Obama’s health initiative in 2010.
Republicans and business groups have long sought to retool the civil justice system, arguing that frivolous lawsuits are producing outrageous awards that bankrupt businesses and deny compensation to legitimate victims. FUNNY: THESE SAME BUSINESS GROUPS SAY NOTHING ABOUT LIMITING RECOVERY IN COMMERCIAL SUITS BETWEEN CORPORATE ENTITITES. If, for example, AT&T sues Verizon for some trademark or patent infringement, these leaders do not bat an eye if there is a multi-million or billion dollar judgment. But if a worker is seriously hurt on the job or a young mother is permanently injured so she is no longer able to care for her children due to a medical negligence, these Congressman want to limit the right to recovery to some pre-determined limit. THIS IS AN ABOMINATION AND THE PROPONENTS OF THESE BILLS SHOULD BE AHAMED OF THEMSELVES.
Joanne Doroshow, executive director of the Center for Justice& Democracy at New York Law School, called the fast-paced legislative campaign to overhaul multiple parts of the civil court system “unprecedented.” “These bills, put together, would exonerate large corporations and the health-care industry for any kind of harm they may cause everyday people,” Doroshow said. Doroshow and others said the Fairness in Class Action Litigation Act would squelch most class-action lawsuits, which typically involve plaintiffs with a wide variety of similar complaints. It could sharply restrict membership in a class, for example, to women who had been sexually harassed in the same way by the same manager, they said.
That measure would also affect asbestos trusts, which distribute funds from legal settlements to victims of asbestos-related illnesses and injuries. The trusts would be required to publicly disclose the names, medical information and award amounts of victims, an attempt to cut down on fraudulent claims that opponents say would violate victims’ privacy rights.
Military veterans disproportionately suffer from asbestos-related illnesses and injuries, and many veterans groups are fighting the bill. “Forcing our veterans to publicize their work histories, medical conditions, majority of their Social Security numbers, and information about their children and families is an offensive invasion of privacy to the men and women who have honorably served,” 18 veterans’ groups wrote in a letter to congressional leaders.
The fourth measure in the package has yet to be scheduled for a vote. The Protecting Access to Care Act would establish a three-year statute of limitations for filing civil lawsuits in most cases where patients and their families believe negligent health care caused injury or death. The bill would also set a $250,000 cap on compensation for “noneconomic damages,” which are separate from damages plaintiffs receive based on future economic losses. Noneconomic damages are meant to compensate victims for pain and suffering, as well as permanent disfigurement or other serious disabilities that may not interfere with their ability to work.
Many states have already adopted caps on noneconomic damages, but some have declared such limits unconstitutional. The House proposal would override those decisions, prompting lawmakers in both parties to complain that the measure would trample states’ rights. The caps would apply broadly to all manner of medical malpractice, including errors in surgery, side effects from unsafe drugs, abuse and neglect in nursing homes, and sexual assault by doctors.
PLEASE CONTACT YOUR CONGRESSMEN AND ASK THEM TO VOTE AGAINST THESE PROPOSALS.
There have been recent, unbelievable changes in trucking safety rules that jeopardize our collective safety. As reported in the Chicago Daily Law Bulletin and US News and World Report on December 8, 2016, the trucking industry scored a victory that week when Republican lawmakers blocked the Obama administration’s safety rules designed to keep tired truck drivers off the highway.
Back in December 2011, the Federal Motor Carrier Safety Administration (FMCSA) – which is charged with regulating the number of hours truck drivers may operate to ensure that they are not driving while fatigued – issued a new rule to stop fatigued driving by making changes to the “hours of service” rules for truck drivers. The rule was complicated, but it basically boiled down to two updated requirements. One required drivers take a 30-minute rest break within the first 8 hours of their shift so they can stay alert on the road. The other updated the use of the 34-hour rest period, known as the “restart”. In the interest of safety, the 2011 rule restricted drivers to using the restart only once every seven days and it required that the restart period include at least two periods of rest between 1:00 a.m. and 5:00 a.m. Basically, it required that drivers have the opportunity to take a very real rest and catch up on sleep before working another very long week. The net effect of these changes was to reduce the average maximum week a driver could work from 82 hours to 70 hours.
But wait, there is more. The American Trucking Association is intending to return in January 2017 when Republicans control the White House and Congress and try to block state laws that require additional rest breaks for truckers beyond what is required under federal rules. This is madness and, obviously, has raised concern among safety advocates that it might signal the start of broad rollback of transportation safety regulations once there is no longer a Democratic president to check the tendency of Republican legislators to side with industry.
Such safety rule rollbacks show utter irresponsibility on the part of the trucking industry and the Republican legislators who are supporting such changes.
Please write/call your Congressmen and tell them you are depending on them to keep tired truckers off the roads. Request that they reconsider such trucking safety rule rollbacks and refuse to pass any other proposals that will make our highways and roads more dangerous. Our Congressmen are answerable to us, the people who elect them, and not to industry leaders whose profit-motive and short-sightedness detract from our collective safety. We cannot sit back and merely hope that the pledge to “Make America Great Again” will not destroy previous efforts to Keep America Safe.
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All too often, politicians frame proposals as “reform” measures that will help Illinois residents. In reality, however, when one considers the deeper implications those measures end up forcing Illinois taxpayers to pay for workers injured on their jobs for which their employers should be held accountable and costs should be paid by the workers’ comp insurers. That is the primary incentive employers and their insurers have to improve working conditions to reduce injuries.
The following op-ed by ITLA President Christopher T. Hurley appeared online in The State Journal-Register, The Southern, Rockford Register-Star, and the Moline Dispatch/Rock Island Argus. [Emphasis added.]
Any one of us could be hurt on the job. It doesn’t matter if we work in an office, a factory or on a farm, accidents happen to people in every occupation. When someone is seriously injured, the question becomes whose responsibility is it to pay for their care and rehabilitation so they can get back to work?
For Republican Governor Bruce Rauner, his insurance industry allies, and many businesses the unfortunate answer is that the person who was hurt and the taxpayers should pay. Under the guise of “reform” they are seeking further changes to our workers’ compensation laws that shift the risk of needing to care for the injured away from insurers and that allow employers to more easily evade the responsibility for ensuring safe worksites and working conditions.
Governor Rauner and Republican legislators want to cut the number of injured workers eligible to receive benefits and many employees, especially older workers more likely to be hurt, would receive no compensation for serious work-related injuries.
That would leave taxpayers, through Medicaid and other publicly funded programs, to cover the resulting medical bills and income support payments that are rightfully the responsibility of the employer. The governor and his insurance industry friends claim that workers’ comp is too generous. In fact, it’s all that’s standing between the families of injured men and women and a life of poverty.
Since lawmakers rewrote the state’s workers’ comp law in 2011, the insurance industry’s cost of issuing policies has plummeted as a result of the reduced amount they have to pay in claims. That legislation curtailed longstanding workers’ rights in an effort to reduce the cost of premiums paid by employers. The National Council on Compensation Insurance, an insurance industry trade group, has since recommended workers’ comp rate cuts totaling nearly 30 percent. That guidance has been ignored.
In 2017 alone, the NCCI suggests that Illinois insurers lower workers’ comp insurance premiums by 12.9 percent. This would represent the third largest drop in the nation and total more than Indiana, Iowa, Missouri and Wisconsin combined. But, employers won’t see a reduction in their premiums when the insurance industry refuses to pass the savings along.
A recent report by the Illinois Department of Insurance revealed that workers’ comp insurers here saw profit jump nearly 22 points between 2010 and 2014 – from negative 11 percent to positive 11 percent – and, by the end of that period, nearly match the national average.
There are 332 insurance companies competing for and writing workers’ compensation insurance in Illinois, more than any other state in the nation. We’re an attractive place to do business for them because of insufficient oversight and laws that put their interests ahead of regular Illinoisans. And yet they still want more – always more.
Insurance companies are taking advantage of both workers and employers. Any further changes to Illinois’ workers’ comp laws should focus on insurance reforms, not punishing injured workers to further pad insurers’ profits.
Please contact your legislators and let them know you do not want insurance companies to take advantage of both workers and employers in Illinois.
New Rule Improves Safety By Ensuring Families Can Hold Nursing Homes Accountable When Residents are Harmed
For years, the nursing home industry has attempted to evade responsibility for injuries to their residents by including forced arbitration clauses in their contracts (typically in fine print) which remove the right to file a lawsuit to recover for injuries and, instead, require any grievances to be brought before an arbitration panel typically aligned with the nursing home industry.
In an American Association for Justice (AAJ) article that appeared back on September 28, 2016, the Association cited the Centers for Medicare & Medicaid’s announcement of a final rule regulating nursing homes. AAJ’s President Julie Braman Kane stated:
“The days of nursing homes using forced arbitration agreements to evade accountability and force residents and their families into signing away their legal rights are nearing an end. Today the Obama administration finalized regulations prohibiting pre-dispute arbitration clauses, taking a tremendous step toward protecting nursing home residents by ensuring that they can hold facilities accountable in cases of abuse or neglect.
“Families harmed by nursing homes united with a wide array of advocates for seniors and consumer groups to urge CMS to prohibit pre-dispute arbitration, and their voices were heard. Today’s rule will ensure that arbitration is truly voluntary by permitting its use only after a dispute arises.
“This will greatly improve patient safety at nursing homes and restore the rights of nursing home residents and their families.”
The American Association for Justice works to preserve the constitutional right to trial by jury and to make sure people have a fair chance to receive justice through the legal system when they are injured by the negligence or misconduct of others—even when it means taking on the most powerful corporations. If you wish to read more about the good work done by AAJ, visit http://www.justice.org.