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Wrongful Death - Philadelphia Injury and Malpractice Attorneys - The Beasley Firm

The Tracy Morgan Truck Accident Might End Up Saving Lives

By Max Kennerly, Esq. on June 8, 2014 - No comments

Update: Mr. Morgan and two of his traveling companions have filed a complaint against Walmart. Here’s the most important parts:

68. Wal-Mart knew, or should have known, that Mr. Roper was awake for more than 24 consecutive hours immediately before the subject accident on June 7, 2014.

69. Wal-Mart knew or should have known that it was unreasonable for Mr. Roper to commute more than 700 miles from his home in Jonesboro, Georgia to work at a Wal-Mart facility in Smyrna, Delaware, especially immediately before he was to commence a long shift operating a truck that weighed approximately 30–40 tons. Additionally, there were many Wal-Mart distribution facilities closer to Mr. Roper’s home — including at least nine in Georgia alone—which would have significantly reduced Mr. Roper’s commute to work.

70. As a result of Mr. Roper’s fatigue, he fell asleep behind the wheel of his truck while he was driving, failed to slow down for traffic ahead, and resultantly collided with the Limo directly in front of him in which Plaintiffs were passengers.

That’s consistent with what I wrote right after the accident: many of these truck accidents are caused by the company compelling drivers to keep driving even when they haven’t slept enough. These allegations are interesting as well:

71. Further, the Truck being operated by Mr. Roper was state-of-the-art, and equipped with sophisticated collision-avoidance systems all designed to begin automatically braking the truck when it senses slowing down traffic.

72. However, the Truck did not automatically brake before the accident, and thus, Wal-Mart knew or should have known that one of the truck’s most important safety features was compromised.

The truck’s “black box” data recorder should be able to tell us a lot about what really happened in terms of the automatic braking, but I doubt anyone would have access to it yet other than the NTSB, which typically retains it until they have completed their investigation.

Walmart has responded with typical corporate doublespeak, promising to do “the right thing,” at least to the extent the law forces them to do so.

 

Here’s my original post:

 

Yesterday, comedian Tracy Morgan was involved in a horrible accident on the New Jersey Turnpike near Cranbury Township that killed one member of his group, seriously injured another two members, and left Morgan in the ICU.

It seems the group was riding back to New Jersey from Delaware in a passenger bus when traffic slowed — a common occurrence on the turnpike, even at 1am — and a Wal-Mart tractor-trailer failed to notice the slowed traffic, then, at the last second, swerved, but still ended up hitting Morgan’s bus from behind. That sent the bus into other vehicles, and it ended up on its side. (I’ve seen a lot of reports calling it a “limousine” bus, which may be technically true, but it doesn’t seem the vehicle was modified, it was just a normal Mercedes-Benz “Sprinter” passenger van.)

The circumstances of the accident are depressingly commonplace.

Let’s start with the time of the accident: 1am. According to the Insurance Institute for Highway Safety, although the evening rush hours (5pm to 7pm) has the highest total number of fatalities, the hours from midnight to 3am actually have the highest fatal accident rate per number of people on the road.

There are a couple reasons why. First, it’s dark — even with streetlights, it’s darker than in the earlier hours in the night, because businesses tend to be closed and, with fewer cars, there are fewer headlights. I’ve driven that stretch of the NJ Turnpike innumerable times late at night, and it can get really dark, more like a rural highway than the type of driving you would expect between New York City and Philadelphia. The absence of scenery can cause drivers to acclimate to the speed, lulling them into complacency. 70 mph doesn’t feel that fast when all you can see are the road signs ‘slowly’ rolling by.

Second, late into the night, more people are intoxicated, and more people are very intoxicated.

Third, people are just plain tired at that time of day, which causes “drowsy driving” and bursts of “microsleep.” Other than the obvious problems — a drowsy driver is less likely to perceive problems, to react in time, to make the right choice under pressure — there’s also the more subtle problem of how even people who are not at fault in the accident make mistakes. People are are less likely to wear their seatbelt at night, in part because they’re more likely to forget it. (This is part of why it’s good to teach children to put on belts habitually, and to do the same yourself, even just to drive across a parking lot, so that it feels abnormal to be in a car without a belt.)

Then there’s the involvement of the tractor-trailer. A couple years back, the Federal Motor Carrier Safety Administration (FMCSA) and the National Highway Traffic Safety Administration (NHTSA) conducted the Large Truck Crash Causation Study (LTCCS), a collection of data on 1,000 large truck crashes, along with a thorough view of the data for each. Their findings showed that “one-half of the LTCCS crashes involved collisions between a large truck and a passenger vehicle (car, pickup truck, van, or sport utility vehicle),” and, of those crashes, the ten most common associated factors were:

  • Interruption of the traffic flow
  • Unfamiliarity with roadway
  • Inadequate surveillance
  • Driving too fast for conditions
  • Illegal maneuver
  • Inattention
  • Fatigue
  • Illness
  • False assumption of other road user’s actions
  • Distraction by object or person inside the vehicle.

Most of these issues are caused, at bottom, by bad policies in place at trucking companies. Policies that put speed over safety. Policies that encourage — or require — driving more hours than allowed by law, thereby forcing drivers on the road even when they’re fatigued. Policies that put unqualified, incompetent, or untrustworthy drivers behind the wheels of >80,000 lbs vehicles.

All those issues were part of why, last year, the Department of Transportation finally amended the FMCSA had amended the ‘hours of service’ rules to force drivers to get more sleep. (As I wrote about here almost exactly two years ago, given that the hour of service logbooks were already ripe with fraudulent entries, i.e., lying about the number of hours on the road, we desperately needed regulations forcing better compliance, like GPS and satellite tracking.)

In an amazing coincidence, just before the accident,the Senate had discussed rescinding those new rules and forcing the FMCSA to use the old rules. The claim is that the new rules cause congestion during the day; the reality is that manufacturers and retailers have a ton of clout on Capitol Hill, far more clout than safety advocates do.

It is cold-comfort for the victims of any accident to think there is a silver lining to their pain. But here there might really be one. If this accident prevents Congress from taking us back to the old, less safe driving rules of the past, then it will save numerous lives in the future.

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Court Removes Absurd Barrier To Missed Pap Smear / Cervical Cancer Case

By Max Kennerly, Esq. on April 1, 2014 - No comments

When it comes to medical malpractice lawsuits, the deck is often stacked against patients. That’s a hard concept for many people to accept after years of advertising and lobbying by insurance companies and health systems to mislead the public, but, truth is, studies even by medical professionals have shown that the malpractice system, if anything, is too protective of doctors, and too often lets them off the hook for deadly mistakes.

A malpractice case decided last week by the Court of Appeals of Georgia shows just how difficult these cases can be, and how it can take years, and numerous court rulings against the patient, just to get a case in front of a jury.

Cathleen Lavelle had a pap smear in April 2006, which was then sent along to the Laboratory Corporation of America (“LabCorp”) for review. Patients aren’t told this, but, when pap smear biopsies are sent off for review, they are often not reviewed by a doctor but by a “cytotechnologist” reviewing pathology slides from over 100 patients a day. The cytotec isn’t supposed to do the work of the medical pathologist, they’re just supposed to see if there’s anything at all abnormal about the cells on the slide, and, if so, then send the slide to a pathologist for a real review.

The slides from Cathleen’s Pap smear showed abnormalities, but the cytotec missed them and so her developing cervical cancer went undiagnosed. The whole point of a pap smear, of course, is to catch these abnormalities early on and to treat the abnormality before it becomes cancerous, as more than 90% of these cases can be successfully treated if caught early on. If not caught early, however, it can be deadly. Cathleen’s opportunity was lost and her cancer spread. The cancer was eventually diagnosed, but by that point it was too late, it metastasized, and it took her life.

Her husband brought a malpractice lawsuit against her gynecologist and against LabCorp, alleging that they had failed to timely diagnose her abnormalities and then treat her, thereby preventing the development and spread of her cervical cancer. His lawyers then did what good lawyers do: they asked a Professor of Pathology, Oncology, and Gynecology and Obstetrics at Johns Hopkins with experience in cytotechnology and interpreting pap smear slides and who has been publishing about these issues in peer-reviewed journals for years to review the case, to see if those original slides showed signs of cellular abnormalities, and to give her opinion about whether or not the doctor and lab court were negligent.

The medical professor said that the case was a “blatant miss,” that the cytotech should have noticed the abnormalities on the cells, and that a pathologist would have agreed the abnormalities warranted specific follow-up by any gynecologist or family medicine doctor. The medical professor then also said that, even beyond her own “focused review” on the slide itself, two “blinded reviews” were done, in which a cytotech or pathologist looked at the same slides without knowing where they came from and found cell abnormalities.

Sounds reasonable enough, doesn’t it? What more could possibly be asked of a plaintiff in a malpractice lawsuit than to hire one of the top experts in the country to explain, in detail, what went wrong, what should have happened, and how her outcome would have been different if the right thing had been done?

LabCorp, however, challenged the sufficiency of the expert’s testimony, and – incredibly – convinced the trial court to throw out the case against it, without even a jury trial. In short, the court held that the professor of pathology oncology couldn’t be trusted to do a focused review at all (due to ‘hindsight bias’), and that the blinded reviews were done improperly. The judge, of course, had no medical training, experience, or education, at all, and then they’re just supposed to apply the law, and not think they know the medicine.  Nonetheless, the Court felt its interpretation of guidelines provided by the College of American Pathologists and the American Society of Cytopathology was good enough that it could tell a Johns Hopkins professor that her opinion was “unreliable” and that she isn’t even allowed to testify before a jury.

If this sounds, well, crazy, it’s because it is crazy, and yet it happens all the time. Courts are supposed to be mindful of the potential for “junk science” to make its way into the courtroom (as I’ve written before, most of this junk science comes from big corporations or from malpractice insurers trying to avoid paying legitimate claims), but many courts take that “gatekeeper” function way too far, and presume it’s up to them — rather than the experts and a jury — to decide what the science and medicine really show.

Thankfully, last week, the Court of Appeals of Georgia reversed the trial judge’s ruling and sent the case back down, with the expert’s opinion back in evidence. I would say “all’s well that ends well,” but three points need to be made:

  • First, it has been several years since this lawsuit was filed, and the surviving spouse has still not been given their chance to present their case to a jury, and, even now, it will be at least several months before they get the opportunity to do so, so there’s more than a little bit of “justice delayed, is justice denied.”
  • Second, in the Georgia Court of Appeals, four judges agreed to reverse the case, but two judges felt the trial court was right! This shouldn’t be a close question.
  • Third, following up on that last point, this case is just one of many. Throughout the country, everyday malpractice plaintiffs have parts of their cases dismissed, and sometimes the whole case dismissed, because a judge ruled that they knew the science and medicine better than the expert witness asked by the plaintiff to testify in the case.

I hope this ruling is part of a trend, with courts being a little more respective of the role of experts and the jury in our system, but I fear that this is more likely just a successful battle in the middle of a long and difficult war. Congratulations to Frank Ilardi in Atlanta for his hard-won victory, and I wish him and his client the best on their continued pursuit for justice.

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All About Side Impact Lawsuits: From Airbag Non-Deployment To Crashworthiness

By Max Kennerly, Esq. on August 11, 2013 - No comments

I always have a mixture of cases going on at the time, and lately I’ve been spending a lot of time on automobile crashworthiness cases, including both structural integrity cases and airbag cases. The work reminded me to get back to a subject I’ve been meaning to write about for a while: the ins-and-outs of side-impact lawsuits against car manufacturers.

About one-third of occupant deaths occur in side impacts. These days, most cars have decent anti-intrusion measures (more on that in a minute), so much of this litigation now focuses on failures of side-impact airbags, and I’ll spend most time on those. They’ve been standard in the automotive industry since the early 2000s, and they go a long way towards reducing those deaths and serious injuries, particularly brain injuries, by protecting occupants’ heads from striking the windows or the pillars — so long as they actually work when needed.

 

The Basics of Crashworthiness, Intrusions, And “The Second And Third Collision”

To understand these side impact cases, we first need to cover some essentials. “Crashworthiness” refers to the ability of a vehicle to protect its occupants in the event of a crash. The NHTSA has a whole section of its website devoted to the issue.

Car manufacturers can be held liable where they used an inferior design despite the availability of safer, practical alternatives that would have better protected the injured person. Perhaps the most well-known crashworthiness lawsuits relate to SUV rollovers: those cases aren’t just a matter of the SUVs being unreasonably prone to rolling over, they also implicate the failure of the SUV to withstand the forces at work in a rollover. The technical term is “roof crush,” which is what happens if the pillars (the parts that hold up the roof, often called the A, B, and C pillars) and the window glass (which itself helps support the roof) aren’t strong enough to hold up the roof when the car is rolling or upside down. (See this report from Public Citizen for more on roof crush.)

You can see the benefits of 50 years of crashworthiness improvements — like airbags, 3-point seatbelts, and better structural integrity for the passenger compartment — in this amazing video produced for the 50-year anniversary of the Insurance Institute for Highway Safety, in which they crashed a 1959 Chevrolet Bel Air into a 2009 Chevrolet Malibu:

That particular crash is called a “moderate overlap frontal test,” which is specific to the IIHS, but not yet required under the federal NHTSA standards.

We’re off-topic here — this post is about side-impacts, and the video is a frontal impact — but it’s important to know all of that background to understand what else is going on in a car during an accident, and thus to understand what improvements like side airbags do in addition, and thus why they’re important.

In the video above, notice a critical difference between the 1959 Chevy and the 2009 Chevy: the 2009 model crumples around the occupant space, whereas the 1959 crumples into the occupant space. That’s referred to as “intrusion.” Anti-intrusion measures, like door bars and safety cages and other innovations developed first in racing, are the most important difference between modern cars and classic cars. All the seat belts and airbags in the world aren’t going to go a thing for people if there’s a serious “intrusion” into the passenger compartment.

As you can tell from that video, there was a time when even big, hulking vehicles like a Bel Air would allow significant intrusion in an accident. These days, you would reasonably expect any car made since the mid-1990s — when the bulk of the NHTSA standards were significantly improved — to withstand intrusion in the bulk of automobile accidents at or below a 40 miles-per-hour speed differential.

Assuming intrusion has been limited, the next issue relates to the forces experienced by the passenger, i.e. the acceleration and deceleration they experience, and the objects inside the car they might strike — like, for example, how a driver will impact the steering wheel in a frontal impact.

That impact — when an occupant, still moving with inertia at the speed the car was traveling, hits something in the car — is often called “the second collision.” There’s a “third collision,” too, when a person’s internal organs, particularly their brain, liver, spleen, and heart, keep moving due to their inertia. We’ll come back to those terms; you can read more about them here.

 

How Do We Tell If A Car Is “Unreasonably” Unsafe In A Side Impact Collision?

Car companies are held liable for selling cars that are unreasonably unsafe. But how do we say whether a car is “unreasonably” safe or not?

First, think of how you test a car’s safety in a crash. Over the past few decades, the National Highway Traffic Safety Administration (“NHTSA”) has issued, and improved over time, a variety of Federal Motor Vehicle Safety Standards and Regulations, known as the “FMVSS.” FMVSS 214, found in 49 C.F.R. § 571.214, has for nearly twenty years required car manufacturers simulate side-impact crashes on a particular car model by way of a test dummy seated in a car that is then hit by a “deformable movable barrier” which is supposed to simulate the front end/bumper of the oncoming car. There’s also another test involving a static barrier, and a new test as of 2009 involving a simulation of a car sliding into a pole.

The FMVSS 214 has requirements car manufacturers must meet — i.e., maximum levels of force allowed in certain accidents at a certain speed — but those standards are merely the minimum that a car manufacturer must do to sell the car in the United States. A car manufacturer can’t just barely meet the FMVSS 214 standards and avoid responsibility for preventable injuries, they’re required to use the reasonable design and manufacturing improvements of the day. Not necessarily “state of the art,” a loaded and ambiguous term, but rather the improvements that are reasonable and practical under the circumstances. The FMVSS 214 standards are just one of the ways that we measure how one car stacks up versus another.

The IIHS has its own side impact testing, which you can learn about here:

 

The FMVSS 214 moving barrier test, and the IIHS versions, produce a whole bunch of data about the forces in the crash, with measurements at the ribs, spine, and pelvis, that together form a composite number called the Thoracic Trauma Index (“TTI”). The FMVSS 214 test is phasing in — and the IIHS and car companies have used for years —another set of data for the head specifically that is compiled into the Head Injury Criteria (“HIC”). Together, the data helps us predict the injuries a real person would suffer in the accident; the TTI and HIC numbers are particularly important in figuring out the damage of the “second collision” and “third collision” we discussed above.

 

Mitigating Side Impact Traumatic Brain Injuries, Spinal Cord Injuries, And Deaths With Anti-Intrusion Measures

As I mentioned above, the biggest difference between cars today and cars from fifty years ago in side-impacts are the 3-point seatbelt and the anti-intrusion measures. When we look at a potential side-impact crashworthiness case, the first thing we do is examine the intrusion into the occupant space. There are a whole bunch of engineering improvements that can be used to reduce intrusion, such as:

  • Strengthening the rocker and the floor pan with high-strength steel, rigid-foam, and other improvements to reduce bending and compression
  • Install cross members in the floor pan and roof to add support, like how door bars work with pillars
  • Ensure doors overlap with other structural components, to keep them from intruding inward
  • Use laminated side-window glass, instead of tempered glass, because it can withstand greater forces
  • Use wraparound seats with belts and pre-tensioners on them, to prevent passenger movement in an accident
  • Add energy-absorbing foam in the interior

You can read about some more details here. All of those will help prevent the “first collision” from touching the passenger at all, reduce the forces at work in the “second collision,” and thereby also reduce the forces in the “third collision.”

 

The Types And Purposes Of Side Impact Airbags

Airbags are, of course, one of the great automotive safety innovations of the past fifty years. (Read about their history here.) “Frontal” airbags — the ones that deploy out of the steering wheel to protect the driver or out of the console to protect the front-seat passenger — dramatically reduce the injuries suffered by unbelted persons in a frontal impact, and significantly reduce the injuries suffered by many belted passengers. There’s a whole world of frontal airbag defect cases out there, but let’s put those aside for a separate post and move on to side impact airbags.

Assume a lower-speed case (say, under 50 miles-per-hour speed differential) without too much intrusion into the passenger cabin, one of the core issues becomes the injuries caused by the second collision — and if a side airbag would have reduced them. There are two main types of side airbags: the side torso airbag and the side curtain airbag.

The side torso airbag is very similar to the frontal airbag, with a round or rectangular shape. It inflates right next to your body to prevent you from impacting the door (or the door impacting you) with as much force, and thus it reduces the acceleration / deceleration in the accident, which is what typically causes the injuries.

The side curtain airbag fills up the space between the occupant’s head and the window. That provides two types of benefits: it prevents the occupant’s head from hitting the window (the causes of thousands of traumatic brain injuries every year), and it prevents the occupant from being ejected during an accident, which is common in rollovers, even if the passenger is belted (because the seat belt can fail or the passenger can be twisted out of it by the rolling).

Based on the available research, the side curtain seems to be the more important one by the numbers. Last year, a group of researchers combed through two crash injury databases and found that “occupants in vehicles with a deployed [side-impact airbag] designed to protect the head had a 30% lower risk of head injuries with an Abbreviated Injury Scale score of 2+.” The side torso airbags didn’t seem to help much. The IIHS has reached similar conclusions.

There are two main types of side airbag lawsuits: design defect cases, where the car could have had a side airbag but didn’t, and non-deployment cases, where the airbag failed to go off in a serious accident.

 

The First Theory Of Side Impact Airbag Lawsuits: The Lack Of A Side-Impact Airbag

Side-impact airbags are fairly new, compared to other crashworthiness technologies. The side torso airbags began with Volvo in the mid-1990s, and the side curtain airbags began with BMW (as the “Head Protection System”) in the late 1990s. In 1998, the NHTSA changed one of its safety standard (FMVSS 201, if you’re curious) to properly measure the benefit of side curtain airbags, and after that all the other manufacturers joined in, like Toyota, Honda, Ford, GM, Chrysler, and so on.

As the IIHS’s website shows, by 2001, just under a third of cars, trucks, and SUVs had as standard or optional equipment side-impact airbags that would protect the head. The design was thus clearly feasible, practical, and economically sensible — indeed, by 2004, more than half of all cars had head-only or head-and-torso side-impact airbags standard or available as an option.

Once you reach that point of widespread adoption, it’s hard for car companies to avoid crashworthiness claims, because there’s no good reason to avoid putting them on the car other than to save a couple bucks. Consumers want and expect each car to be similar in crashworthiness as the comparable cars of that price range and function. Indeed, the NHTSA reported in a study that “[Thoracic Trauma Index] improvements, torso bags and head-curtain air bags could have saved an estimated 2,934 lives in calendar year 2003 if every car and LTV [i.e., larger, heavier, taller vehicles] on the road had been equipped with them.”

One such example involves the 2003 Mitsubishi Eclipse. As a federal court recounted, “[w]ithout a [side torso] airbag, the 2003 Eclipse performed worse than its 2003 Chevy and Dodge sister platforms and worse than previous Eclipse models. Only with an airbag did the 2003 Eclipse show safety results closer to that of its sister platforms and its previous Eclipse models.” Aguirre v. Mitsubishi Motors N. Am., Inc., No. 3:11-cv-00225, 2012 U.S. Dist. LEXIS 140834, at *18 (M.D. Tenn. Sept. 28, 2012). In other words, due to the design of the 2003 Eclipse, it somehow did worse than other cars built on the same platform — a defect that could only be remedied by the inclusion of a side-impact airbag, but Mitsubishi only made the side-impact airbag optional, rather than standard.

Make no mistake, though: these “lack of a side-impact airbag” cases are very difficult, given difficulties in proving that the absence of the airbag made the car defective as compared to merely less safe.

 

The Second Theory Of Side Impact Airbag Lawsuits: The Failure Of An Airbag To Deploy

These are the most common cases. In these cases, the car was equipped with a side-impact airbag, but it failed to deploy, typically for one of three main reasons.

First, it could be a simple electrical wiring failure. Most of these failures aren’t like the wire faults you see in homes. Rather, they’re design errors. For example, in many cars, the wiring for the airbag is configured in a way that the wire can be severed before the airbag sensors detect the rapid change in movement, preventing the airbag from ever being trigger. Other times, specialized pieces like the “clock spring,” which is the device that allows the wheel to turn while still maintaining an electrical current, are broken, and there’s no way to tell until an accident occurs. Every couple of months there’s another major manufacturer recalling cars for some sort of wiring problem, often one relating to the wiring in the seat or the door (because those parts move).

Second, it could be an airbag sensor failure. Sometimes, the airbag sensors themselves, which are supposed to detect rapid acceleration or deceleration, are broken. Other times, the sensors work, but the computer programming is defective; e.g., sometimes the airbag control module simply fails to process the data correctly, and sometimes the airbag is set at too high a threshold before deploying. Finally, in many cars, the manufacturer has skimped on costs by not installing enough sensors, so that none of the sensors is able to detect how severe the accident truly is.

Third, sometimes the airbag fails. In these cases, the sensors detected the crash, the control module commanded the airbag to deploy, but the airbag didn’t deploy. These problems are typically caused by some sort of quality control problem at the manufacturer — e.g., something’s wrong with the sodium azide (NaN3) or potassium nitrate (KNO3) in the airbag itself. In 2012, for example, Honda and Acura recalled a variety of models because “An incorrect propellant mixture was prepared when manufacturing the initiator component of the side-curtain airbag inflator.”

 

Summing Up Side-Impact Crashworthiness Lawsuits

All of the above is, of course, a simple overview — the cases themselves are far more complicated. The car companies set aside millions of dollars to defend these cases, coordinate with one another and exchange information, and have hundreds of engineers on speed-dial ready and willing to say anything to help them.

These cases are also enormously expensive. I’ve never seen a crashworthiness case pursued where the plaintiff’s lawyer spent less than $150,000. Usually, it’s more like $250,000 or more — and you might end up losing before trial, at trial, or on appeal, after investing all that money and thousands of hours of attorney time. As a consequence, these cases typically aren’t worth pursuing unless the plaintiff suffered severe, permanent injuries or death. Anything less than a traumatic brain injury or spinal cord injury is unlikely to produce the sort of settlement or damages award that will make the case worth the injured person’s time and the lawyer’s investment.

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The Shocking Risk Of Post-Crash Car Fires: Michael Hastings & FMVSS 302

By Max Kennerly, Esq. on June 18, 2013 - No comments

Journalist Michael Hastings, perhaps best known for a Rolling Stone investigative feature that led to the resignation of Gen. Stanley McChrystal, died today in a car accident. According to the Los Angeles Times:

The vehicle crossed a median, struck a tree and burst into flames in the Hancock Park area, LAPD Officer Christopher No said. The driver was prounounced dead at the scene.

A witness described the accident to KTLA News: “I was just coming northbound on Highland and I seen a car, like, going really fast and all of a sudden I seen it jackknife,”  Luis Cortez said“I just seen parts fly everywhere, and I slammed on my brakes and stopped and tried to call 911.”

Without jumping to too many conclusions, it seems from the description and the fire that Hastings was driving well in excess of the speed limit. We all jump to the immediate conclusion he was drunk or high, but medical conditions and vehicle defects frequently cause cars to careen out of control, too. If he was abusing alcohol or prescription drugs or something else, it’s another reminder of how America has an unhealthy connection between a “car culture” and a “substance abuse culture” that magnifies the problems of both. It’s that toxic culture that creates absurd and tragic situations like someone being served 23 alcoholic beverages at an Applebee’s in the course of two hours, leading to a drunk driving accident that left a little girl with catastrophic injuries.

But there’s another question lurking here, too: just how fast do you have to go in a car to have it “burst into flames” when it hits a tree?

This isn’t Hollywood, cars don’t just explode when they’re in an accident — or at least they shouldn’t. As I discussed just two weeks ago in a post on the dispute between Chrysler and the National Highway Traffic Safety Administration (NHTSA) over the NHTSA’s demand Chrysler recall the 1993-2004 Jeep Grand Cherokee and the 2002-2007 Jeep Liberty (because they’re prone to catch fire in rear-impact collisions), there are federal standards that provide the minimum standards for vehicle crashworthiness, with tests for a variety of types of collisions performed.

The two relevant standards here are Federal Motor Vehicle Safety Standard No. 301, “Fuel system integrity,” and Federal Motor Vehicle Safety Standard No. 302, “Flammability of interior materials.” These standards were introduced in 1972, and they’ve been updated since then, but, as several safety researchers noted in “Improving Survivability in Motor Vehicle Fires,” that, while FMVSS 301 has done much to prevent the reoccurance of the Ford Pinto scandal, FMVSS 302 — developed in the 1960s with the intent of addressing cigarette smoldering ignition — is worthless:

The requirements of this Standard are intended to strengthen and to protect the vehicle’s fuel system, so that, in a crash event, the chances of fuel leakage, and, consequently, the chances of fire and of occupant injury, will be reduced. Because of the highly flammable properties of gasoline and the fact that gasoline was the predominant fire load when the standards were issued, it was an obvious first choice as the source of combustible material in motor vehicle crash fires. FMVSS 301 has reduced the risk of impact-induced fires due to fuel tank rupture, despite the increase in the numbers of automobiles in use. However, the overall vehicle fire death rate has remained relatively constant over the past few decades, at least partially because of a ten fold increase in the amount of combustible materials (especially plastics) used for interior and exterior applications.

Why is that the case? Because the FMVSS 302 standards don’t really measure how a given substance or structure reacts after a collision, they measure how flammable the material is when exposed to flame. That makes people safer from, say, dropping a cigarette in their car, but it doesn’t make them safer when a fire is started by a collision, as most vehicle fires are started.

Worse, as the researchers found, more than two-thirds of the “combustible plastics, fabric, and foam surfaces” in a car aren’t tested at all, because they’re not covered by the regulation, and the testing does not account at all for issues like radiant heat or how fire actually spreads after collisions. Thus, testing showed that “Once flames penetrate the passenger compartment they spread several times faster than allowed by FMVSS 302, resulting in occupant death in 1-3 minutes.”

1-3 minutes is a lot of time if you’re awake, alert, mobile, and aware of the danger. It’s no time at all if you were just in a car accident, disoriented, injured, and still strapped in or trapped by the bent steel, and it’s a death sentence if you were unconscious.

Little wonder groups like the National Fire Protection Association despise FMVSS 302, and in their NFPA 556 (“Guide on Methods for Evaluating Fire Hazard to Occupants of Passenger Road Vehicles”) deemed it useless. NFPA members routinely say at their annual meetings that manufacturers should not even attempt to meet it, because everything will pass, and it will mislead them into believing the car is safe.

So, while I’ll leave to others to memorialize and learn from Michael Hastings’ life and tragically early death, there is one part I hope doesn’t get lost: cars really can burst into flames, and neither the government nor the car companies are doing much about it.

 

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Could The Philadelphia Building Collapse Have Been Prevented By Bracing Or Helical Piers?

By Heidi Villari, Esq. on June 5, 2013 - No comments

I heard the sirens going by my office today and shortly thereafter the news flashed across my computer screen: the building at 22nd and Market that housed the Salvation Army had collapsed, trapping people inside.  When an awful tragedy like that occurs, catastrophic injury lawyers feel the same rush of empathy and emotions as everyone else, but then the wheels start turning: how did this happen? Structural engineering is one of the oldest arts in the world, and buildings today don’t just collapse unless someone did something wrong. The Kensington Warehouse Fire that killed two firefighters, for example, wasn’t just “an accident” — it was the result of gross neglect of the property, and it was completely preventable.

The moment the news started reporting that the collapse was part of a demolition, I immediately wondered: “did the contractor use helical piers to support the next door foundation?

The helical pier (a/k/a screw pile) was invented in 1830 by Alexander Mitchell, an Irish engineer.  It looks like a giant steel drill bit, and it was originally used to stabilize beachfront structures such as light houses built on sand. The piers were made of cast or wrought iron (or steel) and would be literally screwed into the ground to underpin the foundation. These piers provide more firmness and stability than straight piers.

Without the use of helical piers, the urban demolition contractor is simply asking for trouble. Buildings in the Philadelphia metropolitan area tend to be old, and often lack adequate support for the foundations.   In certain sections of the city, foundations can be merely 8-12 inches deep. So, common sense would suggest that tearing away its buttressed walls, could cause collapse. In a tear-down, it is critical that the demolition contractor strengthen the neighboring buildings’ foundations.

Before I joined The Beasley Firm, I used to represent demolition companies that would perform tear-downs in row homes and row businesses in blighted neighborhoods for the City of Philadelphia.   Inevitably, lawsuits would be filed for damage to the adjacent structure, as the next-door demolition would cause partial and/or complete collapses to its neighboring structure. There is usually a warning that a neighbor’s structure has been compromised and, as a matter of course, the first thing I would obtain in my investigation was the City of Philadelphia Inspector’s file to see how the project had been progressing and/or whether there was any notice to the contractor that damage to the adjacent property had been made.

Obviously, the same needs to be done here by any lawyer representing the victims of the collapse. I would want to know if the company or any of its subcontractors were given any earlier violations and/or citations from the City and/or OSHA. I would look to see whether the blue prints (if there were any prepared) required the use of helical piers during demolition, and to ensure every precaution was taken to prevent foundational damage to the adjacent structures, like using bracing on any walls that had weak foundations, or from which supports had been removed.

Since I used to be the one to come up with them, I already know the defenses the demolition contractors will raise:

  • Center of City of Philadelphia buildings are all tied in together;
  • There was no immediate damage to the bricks of the adjacent building;
  • The adjacent building had been compromised previously due to long-term rain water and faulty roof leakage;
  • The blueprints did not call for the use of helical piers;
  • The architect and the City Inspector’s office had approved of the demolition work.

But the simple answer to all of those defenses is: “use helical piers.” When demolition is being performed, it is imperative that shoring equipment and supports be used during and after the demolition.   Few currently standing building are so weak that they can’t be reinforced for the demolition — or, if they are that weak, then the demolition contractor has an obligation to recognize that, to warn the property owner, and to call off the demolition.

I would be interested to see the blueprints and the Inspector’s file on the 22nd and Market project. Right now, with nothing more than a news report, I am quite sure that we would find that no contractor lent the Salvation Army Building the support of helical piers, that an inadequate assessment of the risks was performed, and that bracing wasn’t added to walls and ceilings as their support was removed.

This isn’t rocket science; most of it is required by law. For example, OSHA regulation 1926.850(a) requires:

Prior to permitting employees to start demolition operations, an engineering survey shall be made, by a competent person, of the structure to determine the condition of the framing, floors, and walls, and possibility of unplanned collapse of any portion of the structure. Any adjacent structure where employees may be exposed shall also be similarly checked. The employer shall have in writing evidence that such a survey has been performed.

Did the demolition contractors do that? I’d say probably not — if they had, this wouldn’t have happened. Odds are, either they didn’t do a proper survey, didn’t use helical piers, or didn’t add bracing to a structure after removing the supports. There’s good odds they didn’t do any of those. It’s our experience that catastrophes  whether they be airplane crashes or building collapses, are the result of multiple simultaneous failures. Indeed, rumors have surfaced about the quality and safety of work there, including this disturbing claim that, a month before the tragedy, someone in the neighborhood filed this complaint with Philly311:

The workers are not wearing any safety equipment (not even hardhats while working to demolish brick facades with crowbars). The sidewalk is not adequately protected, and there appears to be no adequate plan to prevent the collapse of walls or facing materials onto pedestrians and those exiting the subway.

If true, then this tragedy was not merely preventable, and not merely negligent; it was criminal.

 

For over fifty years, The Beasley Firm has set the standard for representing the injured in catastrophic accidents, with hundreds of successful verdicts and settlements for our clients. Our construction accident team include attorneys who have more than 30 years combined experience in handling construction accidents, injuries and fatalities, alongside the top investigators, structural engineers, and demolition experts in the country.

If your loved one has been injured in a building collapse and you are investigating the possibility of filing a workers’ compensation claim and/or third party lawsuit, contact our firm for a free, confidential review by our experienced construction accident lawyers. You can use the online form above, or call the firm’s main line at (215) 592-1000.

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$61 Million in Punitive Damages For An Electrocution: The Exception, Not The Rule

By Max Kennerly, Esq. on February 4, 2013 - No comments

The headline started with the phrase “$109 Million Personal-Injury Award,” but two phrases from the article better summed up what really happened: “Mommy is on fire,” and “the power line that had killed her had collapsed in the family’s yard twice before, [but] no serious attempt was made to find out why the line failed.”

The Philadelphia Inquirer’s article on the recent verdict in the Goretzka v. West Penn Power Co. electrocution case  is concise yet thorough, portraying the extraordinary lawsuit in an even-handed manner. The $109 million verdict has two components.

$48 million of the award was for compensatory damages, split between the “wrongful death” claim for her husband and her two little girls, and the “survival claim” representing the compensation she would have recovered had she lived. (More about that divide in this post on wrongful death damages.) The number is certainly at the top end of compensatory damages verdicts, but it is not surprising. Lawyers who have worked on a number of catastrophic injury and wrongful death cases spend a lot of time talking with physicians who provide expert testimony about the pain caused by various injuries, and few disagree that the two most painful experiences a person can suffer are electric shock and significant burns. Ms. Goretzka had both: 20 minutes of severe electrocution that caused her burns over 85% of her body, followed by three days in agony at the hospital. The article doesn’t say what she died from specifically, but under the circumstances, I assume infection, as burn victims tend to die from infection.

She suffered thus suffered pain almost beyond comprehension. The thought of it reminded me of the words of George Wilson, a Scottish chemist who had his foot amputated in 1843, before use of anesthesia:

During the operation, in spite of the pain it occasioned, my senses were preternaturally acute. I watched all that the surgeons did with a fascinated intensity. Of the agony it occasioned, I will say nothing. Suffering so great as I underwent cannot be expressed in words, and thus fortunately cannot be recalled. The particular pangs are now forgotten; but the black whirlwind of emotion, the horror of great darkness, and the sense of desertion by God and man, bordering close upon despair, which swept through my mind and overwhelmed my heart, I can never forget, however gladly I would do so.

$61 million of the award was for punitive damages, the subject of the article. That figure was reached through a surprisingly generous calculation: the jurors took one quarter of the company’s retained earnings after dividends and expenses, and awarded that.

(The article also reveals that, just prior to trial, the parties agreed to settle the lawsuit for $50 million and a commitment for the company to fix improperly installed electrical wires across Western Pennsylvania, but the company backed out the next day.)

But the article bothered me nonetheless, because it could leave a mistaken impression with readers. This case was, by any interpretation, extraordinary, and the presence of punitive damages was extraordinary as well. Punitive damages are one of the great bogeymen of tort reformers, who repeatedly point to verdicts like this and then claim that they are commonplace and destroying American business. Nothing could be further from the truth: punitive damages are barely even presented to the jury, even more rarely reported, even more rarely sustained on appeal, and even more rarely actually collected against the defendants.

A 2005 study by the Bureau of Justice Statistics noted that, in the mere 3% of civil cases that were resolved by a trial, punitive damages were awarded in fewer than 1% of typical tort cases, like negligence, product liability, and malpractice cases. (If intentional torts — like criminal assaults — are included, the figure rises to 3% of tort cases.) The study looked at Allegheny County specifically, and found that punitive damages were only even sought in 3% of civil cases, including intentional torts and fraud claims. Even when those criminal cases are included, the median punitive damages verdicts were still only $64,000.

That’s certainly my experience, as most of my cases don’t even involve punitive damages. But even in the big punitive damages case, the verdicts don’t necessarily translate into actual money paid. A few years ago I was co-counsel in a wrongful death trial in Philadelphia that resulted in a large verdict, including a $15 million punitives damages component. When all was said and done, after all of the appeals and bankruptcies, we collected not one penny of those punitive damages, and the defendant is still out there, doing business as usual, hurting people just the same.

So while I applaude the Inquirer from bringing attention to the awful facts of this case — and thus showing to the public how justified they were — I do wish they would have put more into explaining how rare punitive damages are.

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An Anesthesia Error Or Anesthesiologist Mistake Can Cause Brain Damage, Nerve Damage, Paralysis, Blindness Or Even Death

By The Beasley Firm on January 4, 2013 - No comments

Anesthesia or conscious sedation can be a wonderful thing.  It allows patients to undergo surgery or other invasive procedures without experiencing pain or discomfort.  It has come a long way since chloroform, ether, and opium but it is still not without risk of harm.  Current statistics show that 1 in every 200,000 to 300,000 patients die and others are seriously injured due to anesthesia complications or mistakes.

Three common types of anesthesia include:

  • Local anesthesia which is used to numb a small, specific area of the body, such as a tooth.
  • Regional anesthesia to numb a larger section of the body.  Spinal anesthesia and epidural anesthesia are examples of regional anesthesia
  • General anesthesia that results in unconsciousness and lack of sensation

Anesthesia is not only administered in hospital operating rooms (OR).  It is also used in surgical centers, dentist offices, emergency departments, intensive care units, outpatient procedure units, pain clinics, plastic surgery offices, ambulatory surgery facilities (ASF) and short procedure units.

The following are anesthesia mistakes or negligent acts that can happen when a patient is receiving anesthesia:

  • Anesthesia dose or medication error resulting in too little or too much anesthesia
  • Improper intubation or failure to properly oxygenate the patient leading to hypoxia or a brain injury
  • Delay in receiving the medication due to a faulty intravenous (IV) line
  • Not monitoring an IV line that could lead to fluid or medication infiltration and compartment syndrome
  • A failure to recognize any complications during anesthesia or surgery
  • Failure to respond quickly enough to an emergency situation or if the patient becomes unstable
  • Traumatic or forceful intubation that could perforate the esophagus
  • Placing an epidural in the wrong spot
  • A failure to monitor or address unstable vital signs
  • Improper padding or limb protection
  • Damage to nerves or spinal column
  • Give the wrong medication
  • Not monitoring the pulse oximetry (pulse ox) to check on proper oxygenation or turning the alarms off.
  • Ignoring alarms
  • Leaving the head of the bed and leaving patient unattended
  • Allowing the oxygen source to come too close to electrical equipment causing a flash fire, sparks or burns
  • Defective equipment
  • Not having the proper resuscitation equipment in case of a medical emergency

An anesthesia error or anesthesiologist mistake can cause tracheal or esophageal damage, a lack of oxygen to the brain, blindness, stroke, heart attack, damage to a limb, birth injury in a pregnant mother, traumatic brain injury, spinal cord injury, paraplegia, nerve damage, coma or even death.

If you or a family member were injured while undergoing a surgical procedure or receiving anesthesia by an anesthesiologist or nurse anesthetist (CRNA) you may be eligible for compensation.  Here at the Philadelphia Beasley medical malpractice law firm we have on staff doctors and nurses who have actually worked in hospitals or centers where anesthesia was administered.  To date, our experienced legal and medical teams have had over $2 billion awarded on behalf of our injured clients.  Please feel free to contact one of our lawyers, doctors or nurses at 1.888.823.5291 for a strictly confidential and free consultation.

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High Blood Sugar Or Hyperglycemia In Patients Receiving Total Parenteral Nutrition (TPN) Are At A Higher Risk Of Death

By The Beasley Firm on January 4, 2013 - No comments

Research published by the American Diabetes Association shows that non-critically ill patients who develop hyperglycemia or a high blood sugar after receiving total parental nutrition (TPN) or hyperalimentation are more likely to die in the hospital.

TPN is used in patients who cannot or shouldn’t get their nutrition by eating.  TPN may include a combination of sugar, carbohydrates, proteins, lipids, electrolytes and trace elements.  TPN is administered to any patient, from premature infants in a neonatal intensive care unit (NICU) to the elderly if it is medically necessary for nutritional purposes.

The research found that patients who were not critically ill who had an average blood glucose or blood sugar level above 180 mg/dl due to TPN had a 5.6-fold increase in wrongful death as compared to those patients whose blood sugars were below 140 mg/dl.  The increase in mortality persisted even after accounting for patient age, nutritional status, sex, other medical conditions, high blood sugar prior to TPN, diabetes, C-reactive protein level, albumin level, hemoglobin levels or infections.

Hyperglycemia or too much sugar in the blood can cause the following problems:

  • Polydipsia – frequent or excessive thirst
  • Polyphagia – frequent or pronounced hunger
  • Polyuria – frequent urination
  • Fatigue
  • Blurred vision
  • Weight loss
  • Dry mouth
  • Poor circulation
  • Poor wound healing
  • Dry or itchy skin
  • Numbness or tingling in the extremities, especially the feet and legs
  • Erectile dysfunction
  • Recurrent infections
  • Seizures
  • Irregular heart beat or cardiac arrhythmia
  • Coma
  • Death

This most recent research data suggests that the goal of blood sugar control in patients who are not critically ill, with or without diabetes, who are receiving TPN or hyperalimentation, should be to have a blood glucose level below 180mg/dl.  According to the authors, “This study opens the door to further prospective studies in non-critically ill patients to determine whether stricter blood glucose control during TPN infusion improves the outcome for patients and reduces mortality.”

If you or a loved one developed complications from a high blood sugar or hyperglycemia, we may be able to assist you.  Here at the Philadelphia Beasley medical malpractice law firm we have on staff physicians and nurses who have cared for patients on hyperalimentation or who had hyperglycemic episodes.  Please feel free to contact one of our lawyers, doctors or nurses at 1.888.823.5291 for a strictly confidential and free consultation.

For over 50 years we have been a leader in Philadelphia’s legal community when an individual who has been harmed, is looking for a law firm to represent them. Since 1958, The Philadelphia Beasley Law Firm attorneys have represented some of the most prominent and powerful people in the area and obtained record setting verdicts and settlements, including the first ever million dollar verdict in Pennsylvania. Our Firm has obtained hundreds of verdicts or settlements that were $1 million and above, and has had over two billion dollars awarded on behalf of our injured clients.

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Too Much Sodium or Salt in the Body Due To A Pharmacy Medication Or Drug Error Can Lead To Death Of A Patient

By The Beasley Firm on January 4, 2013 - No comments

In September 2010, a 24 week premature little boy was born in an Illinois hospital.  Due to his prematurity, he had to receive all of his nutrition from intravenous (IV) fluids and electrolytes.  The newborn was doing very well after birth until a grave mistake made by a pharmacy technician caused an extremely high level of sodium in his little body or hypernatremia.

The pharmacy technician, who was following a doctor’s order, filled the IV bag with 60 times the amount of sodium that should have been added.  It was also discovered that the initial label on the IV bag correctly identified the incorrect amount of sodium.  Instead of discarding the IV fluid with the incorrect sodium amount, a new label was created showing the correct sodium dosage and was placed over the first label.  The nurse administering the IV fluid was not made aware of the mistake or the creation of a new label.

In the following days, when this little boy’s lab tests were showing an extremely high sodium level, it was chalked up to being an incorrect lab result.  Sadly, it was not an incorrect lab result and he died of hypernatremia or excessive amount sodium in his body.  His parents filed a wrongful death lawsuit blaming a series of hospital, pharmacy, nursing and neonatal intensive care unit (NICU) or neonatologist negligence that led to his untimely death.

Hypernatremia or a high sodium level in the body can cause mental status changes, confusion, lethargy, irritability, weakness, edema or swelling, muscle twitching, exaggerated reflexes, tremors, seizures, coma and death.

In addition to receiving an overdose of sodium, individuals can suffer from hypernatremia if they do not have enough water intake or are dehydrated.  The elderly, chronically ill, children and overworked athletes are at a high risk of developing hypernatremia.  It is very important that a healthcare provider diagnose and quickly treat a high sodium level before it results in a catastrophic injury or death.

Our highly specialized legal and medical teams here at the Philadelphia Beasley wrongful death law firm have evaluated numerous cases where hypernatremia, dehydration or a high sodium level was not properly diagnosed or treated in a timely manner, and it led to a catastrophic injury or wrongful death.  If you think you or a loved one has suffered due to a medication error please feel free to contact one of our lawyers, doctors or nurses at 1.888.823.5291 for strictly confidential and free consultation.

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New Jersey (NJ) Can Be A Deadly And Dangerous Place To Walk Or Be A Pedestrian. You May Get Hit By A Car.

By The Beasley Firm on January 3, 2013 - No comments

A national report ranked the state of New Jersey (NJ) as the 21st most dangerous state to be a pedestrian or walk in.  Transportation for America found that roads or highways in New Jersey frequently lack sidewalks or crosswalks, leaving walkers no other choice than to be in harms way especially in areas where cars or trucks are traveling at a high rate of speed.  This is especially true in the winter months when both the roads and side of the roads are covered with ice, snow or freezing rain.  Experts agree that there is heavy traffic in New Jersey especially around malls, shopping centers or stores and limited safe paths for walkers.  Anyone who is struck by a car can be left with limb amputations, blindness, brain damage, spinal cord injury, internal bleeding and organ damage, paraplegia, quadriplegia or even death.

The report that was released showed that in between 2000 and 2009, in the Garden State, 21.3 percent of “traffic” deaths involved a pedestrian, and that 1,514 people were killed in auto-pedestrian car accidents.  Both Monmouth and Ocean Counties had 87 pedestrian fatalities over the 9 year period.  Middlesex County had 145 pedestrian deaths.  Union county had 144 auto-pedestrian deaths.  Morris County had 50 pedestrian traffic fatalities.  Somerset County had 33 deaths and Hunterdon County had 17 deaths.  The Group also indicated that Route 130 in Burlington County was the most dangerous road for pedestrians to walk on since there has been 17 people killed on that road while walking in just the last five years.

The report also showed that African-Americans, Hispanics, and senior citizens are more likely struck and killed than Caucasian pedestrians, which places New Jersey as the eighth highest in the nation for elderly or senior citizen auto-pedestrian deaths.

Our experienced motor vehicle accident lawyers here at the Beasley Law Firm employ the most skilled and experienced auto-pedestrian related investigators, engineers, safety experts, and accident reconstructionist to thoroughly investigate any auto or car accident related injury case.  In addition, we also have on our staff two registered nurses and two physicians who are very familiar with the catastrophic injuries that one sustains after being hit or run over by a car or other motor vehicle.  Two of our registered nurses were certified emergency room nurses and trauma nurses.

If you or a loved one has been involved in an auto-pedestrian or hit and run accident which has caused a catastrophic injury or death, the Pennsylvania (PA) and New Jersey Transit auto accident attorneys of the Philadelphia Beasley Firm is where you want to turn to for help. Our medical and legal teams have a proven track record since 1958 in handling serious and catastrophic injury litigation and wrongful death cases. Please feel free to contact one of our auto accident lawyers, doctors or nurses at 1.888.823.5291 for a strictly confidential and free consultation.  To date, we have had over $2 billion awarded on behalf of our injured clients.

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