Federal “Minimum Standards” Held No Obstacle to Product Safety

Delbert Williamson was driving the family’s 1993 Mazda MPV minivan through Utah.  His wife Thanh was seated in the rear middle seat, next to their daughter Alexa.  Everyone in the van had lap and shoulder belts at the time of their head-on collision, except Thanh.  Her seat was equipped with a lap-only belt.  Everyone in the van survived the crash, except Thanh.

The Williamsons sued Mazda alleging a lap and shoulder belt would have saved Thanh’s life.  This is known as a “crashworthiness” case.  The family does not claim Mazda caused the accident.  However, they produced evidence that Thanh died because her body “jackknifed” around the lap-only belt, causing massive internal injuries that led to her death. Had Thanh been wearing a lap and shoulder belt, her injuries would have been less severe; she would have survived the crash. They sued Mazda for Thanh’s death, which would have been avoided had the vehicle not had a defective lap-only seat belt.

Mazda argued federal regulations regarding seat belts preempted (prohibited) this lawsuit.  Mazda claimed lawsuits like the Williamsons’ pose an obstacle to enforcement of those regulations.  Courts have upheld “obstacle preemption” in other cases.  Mazda expected to win.

Product manufacturers spend millions of dollars defending lawsuits they can and should settle, even when the cost of settlement would be far less.  Their strategy is simple: make the cases too expensive for claimants and their lawyers.  Car companies are among the most notorious for this “defend at all costs” philosophy.  Mazda took the Williamson family all the way to the Supreme Court of the United States over the issue of whether the family was allowed to sue.

However, in Williamson v. Mazda (decided February 23, 2011), the Supreme Court of the United States unanimously ruled that federal regulations are not necessarily an obstacle to product safety.  Justice Breyer wrote it is wrong to “treat all such federal standards as if they were maximum standards, eliminating the possibility that the federal agency seeks only to set forth a minimum standard potentially supplemented through state tort law.”

This was a rare “win” for consumers.  For a Supreme Court that regularly holds in favor of big business, this case may be the signal the Court is taking a different path.  Let’s hope so!

As Middle Eastern autocracies erupt in protest, we Americans know what the people in the streets are fighting for: Freedom.  We have the luxury of debating what “freedom” means.  I think “being free” is reflected in three ideals:

1.  Democracy. People are entitled to choose their government, but is democracy enough?  If they hold an election and choose a new dictator, what have they gained?  Look at Iran.

2.  Pluralism. Liberty is translated from theory into practice when citizens have equal rights regardless of race, gender, religion, national origin or sexual orientation.  Americans embrace freedom, but what sets us apart is our commitment to diversity.

3.  Law. What good are rights without a legal system to enforce them?  Our Founding Fathers recognized all the freedoms in the Bill of Rights depend upon the Sixth and Seventh Amendments – the ability to enforce those rights in a court of law, before a jury of your peers. Thomas Jefferson said, “I consider trial by jury as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution.”

Those are three ideals worth fighting for!

Saying “No” is one of the worst jobs of a trial lawyer. We are in business to help injury victims.  People who call expect us to do something! When the law and facts are unfavorable, people do not take the news well.  And who can blame them?  They keep hearing people get rich from lawsuits.  It is untrue.  At best, people are compensated and not enriched in lawsuits.  “Frivolous lawsuits” and the “lawsuit lottery” are illusions.  You are much more likely to lose a valid lawsuit than win a frivolous one.  But the sales job by the “tort reform” lobby has been relentless, so people have expectations, particularly when their injuries are not their fault.

Your legal rights and remedies have been slashed and burned by an aggressive, anti-consumer, pro-insurance Texas Legislature and Supreme Court.  As a result, we lawyers say “No” on many cases we accepted in the past.

Premises liability cases – where someone slips or trips and falls – are an example.  For years, lawyers could win these cases if we showed an operator of a business should have known there was a hazard.  Over the past twenty years, the Supreme Court of Texas has made it difficult to win a case without showing employees of the business actually knew there was a hazard.

Most people who slip and fall in stores are treated as pests by store management and even worse by claims adjusters.  They are strung along and asked for proof of their injuries only to be told (often after the two year statute of limitations passes) the store was not at fault and they will receive no help.

Retail stores refuse to pay injured customers’ medical expenses as they arise.  People with health insurance have a means of seeking care.  Those without coverage are left in limbo.  They cannot afford treatment, and most lawyers will not help them.  The lines at public hospitals like Ben Taub and LBJ are long and frustrating, but they are frequently the only choice for people with no coverage.

So, what should you do if you fall at a store or other public business?  Here are steps to follow:

1.  SAY SOMETHING! Let people around you know you have fallen.  Summon help from store personnel and bystanders.  Try to find witnesses to help you confirm the hazard had been there a long time and was being ignored by store personnel, and get their contact information (name, address, phone, email).

2.  TAKE PICTURES. Use a camera or smart phone to take as many photographs of the area as possible – including the source of the spill or other hazard – before store employees change the scene.

3.  SEEK MEDICAL CARE. Do not wait for the store’s claims staff to help you.  Go to a hospital or the doctor immediately, even if you have to go to a public hospital or emergency room.  Continue to seek care as needed.

4.  WRITE THE STORE.  Send a certified letter with a return receipt (green card).  State the date, time and location of your fall and ask the store to “preserve any and all video images that show the area of the fall and 200 feet around that area for at least two hours prior to the incident.”  Keep a copy of your letter.  If you have a fax machine that will print out a confirmation sheet, you can fax the letter instead of sending it by certified mail.

5.  CALL A LAWYER.  Do not wait to be told “NO” by the store’s claims adjuster.  Go over the facts of the incident with a lawyer as soon as possible.

Even if you follow these steps, you may not have a case.  But you may at least have a fighting chance!

As Rep. Gabrielle Giffords continues to heal from her injuries, we in Houston should be proud she chose TIRR – the Institute for Rehabilitation and Research located in the Texas Medical Center – as the next stop on her road to recovery.  Few places offer such amazing resources for the treatment of brain injuries.

Just as the wars in Iraq and Afghanistan have brought to light the horrors of TBI (traumatic brain injury) and PTSD (post-traumatic stress disorder), Rep. Giffords’ journey will shine a light on the world of rehabilitation from serious brain and spinal cord injuries.  TIRR and its amazing doctors, nurses, therapists and other caregivers rehabilitate patients with many forms of impairment caused by injury and illness.  Once patients cross the TIRR threshold, the focus turns from what brought them there (car accident, stroke or gunshot wound) to how they will be rehabilitated to lead a productive life.  TIRR’s halls are lined with photographs of success stories, most of whom are people you do not know.  Their stories are no less compelling, even if they do not occupy the spotlight of national recognition.

The road is often difficult, and not all the stories are successful.  Success in the world of rehabilitation often comes in small increments: the ability to feed oneself, operate a motorized wheelchair or communicate with assistive devices.  There are also big wins, such as Ken Everett, the Buffalo Bills football player who came into TIRR paralyzed from the neck down and walked out.

One harsh reality in the world of rehabilitation is the enormous cost of care, a burden which will thankfully never impact Rep. Giffords.  However, from the moment a catastrophically injured patient enters rehabilitative care, funding is an issue.  Lifetime maximum benefits and bureaucratic red tape are unavoidable elements of an insurance-based healthcare delivery system.  For people with no coverage, the perils are even greater.  Treatment at the TIRR level of rehabilitation is expensive, and even though TIRR has become a part of the Memorial Hermann system, it operates on a budget.  Just as importantly, the needs of patients do not end when they leave TIRR.  In the absence of adequate insurance coverage or resources, many patients become wards of their families, as parents, children and siblings become principal caregivers.

And some patients end up alone in nursing homes.

We all wish Rep. Giffords a full and complete recovery.  As she goes through her recovery, she may become an advocate for those who face similar challenges.  We should all be prepared to listen.

Amid the rush to judgment in the aftermath of the terrible events in Tucson, there are two inescapable realities.  There are people among us who are mentally unstable, and many of them have access to high powered weapons.

These two truths have the potential to affect all of us.  There are men and women of all ages with undiagnosed, untreated mental illness.  Guns which can inflict massive levels of damage are available at retail stores.  A combination of the two is potentially deadly.  If you operate a business or go to places where people congregate, you face this potential threat.

Access to mental health care is extremely limited.  Health insurance policies and plans severely restrict benefits for psychiatric care.  Public mental healthcare services are sparse and overburdened. Many people with serious psychiatric conditions are not diagnosed or treated.

Guns available at retail stores and online are powerful and have large capacities.  A deranged shooter can inflict dozens of casualties in a matter of minutes.  Columbine…Virginia Tech…Tucson.  All involved lunatics using high powered weapons.

Because individuals have the capability of acquiring weapons of mass murder, the need to reform our mental healthcare system has never been more urgent.  This should not be a political fight.  Insurance companies and employer health plans should not be permitted to discriminate between coverage of physical and mental conditions.  People who observe family members, friends or coworkers exhibiting signs of severe mental illness, and particularly aggressive or violent behavior, should have better resources so that dangerous people can be identified, treated and prevented from buying guns.

We do not know if these measures would have prevented what happened in Columbine, Virginia Tech or Tucson.  But they might prevent the next tragedy.

Driving While Intoxicated, Driving While Cellphoning and Driving While Texting are all dangerous. A new threat lurks on our streets that threatens your safety – Driving While NAVing.

Navigation devices are common. There are integrated NAV systems in new cars, Garmin-style NAV units that mount on windshields, and even smartphone apps like AT&T NAV and Verizon Navigator. Hertz has a “NeverLost” NAV option that is a perfect description: plug in your destination and the NAV guides you, providing turn-by-turn assistance along the way. You are never lost. Even if you miss a turn, the NAV calculates a new route, and within seconds you are back on track. No maps, no stopping to ask strangers, no arguments with passengers, just smooth sailing.

So where is the danger? What is the big deal?

The problem is that people drive while NAVing. Instead of stopping to input data, drivers tap in addresses while their vehicles are in motion. The distraction factor is identical to driving while texting. Just watching the NAV to check your route or the traffic ahead (a new feature) takes your eyes and attention off the road. If you are not watching what is in front of your vehicle, you may run into it. That could be a stopped car, or a pedestrian crossing that street you are viewing on the NAV screen instead of seeing through your windshield.

Driving does not lend itself to multitasking. If you must NAV, pull over!

Have a safe New Year!

From all of us to all of you, have a Happy Holiday, and a healthy, safe and happy 2011!

Steve Waldman and Kevin Kyser, Attorneys
Debbie Bowman, Eileen Palmer, Rosy Gonzalez and Sydney Igleheart, Staff

A client of mine attaches an image of the 9/11 heroes to every email she sends me.  That image was made into a postage stamp (below) commemorating the bravery of the first responders who rushed to Ground Zero following the tragedy, risking their lives and their health to dig their fellow citizens out of the rubble.

These brave men and women who went to Ground Zero did not stop to check if proper procedures were being followed. They did not even consider that they were placing their lives at risk, and in fact were told by the EPA that there was no hazard. This was untrue. Ground Zero was a stew of toxic substances, including asbestos and heavy metals. A study performed by Mt. Sinai Hospital determined that “roughly 70 percent of nearly 10,000 workers tested at Mount Sinai from 2002 to 2004 reported that they had new or substantially worsened respiratory problems while or after working at ground zero.” Sadly, many of these people have no medical coverage for their injuries. All of them deserve full medical coverage and financial compensation.

The First Responders Bill needs to be passed before the Lame Duck session of Congress ends! To make sure there is sufficient support for the bill to override a threatened filibuster, please contact your U.S. Senators now! The vote may take place today!

The best way to communicate with your Senators is to send a fax. For those of us in Texas, here are the fax numbers for your U.S. Senators:

Senator Kay Bailey Hutchison – 202.224.0776
Senator John Cornyn: 202.228.2856

You may also send an email via each Senator’s website contact form:

Senator Hutchison’s Online Contact Form
Senator Cornyn’s Contact Form

Let your Senators know that holding up passage of the First Responders Bill is wrong and encourage them to pass it today!

The Federal Government has sued B.P. for the April 20, 2010 Deepwater Horizon disaster.  An AP Story, relates the lawsuit was filed yesterday (Wednesday, December 15, 2010) against BP, Transocean, Anadarko and others (but not Halliburton, which provided the blowout preventer and the concrete seal, both of which failed).  This civil action seeks fines and penalties under the Oil Pollution Act of 1990 , which was passed in response to the Exxon Valdez Disaster .

If the law could not prevent disasters, perhaps it can hold companies responsible for them.  That is what the lawsuit is about. While we can root for the feds to succeed in this multibillion dollar litigation, there are three points to keep in mind:

1. The federal government does a pitiful job preventing and punishing offenders for causing personal injuries and deaths occurring, particularly in the workplace.

2. The U.S. vs. B.P. lawsuit does not seek to recover damages for any person or business harmed by the Deepwater Horizon disaster.  Victims must file a claim against B.P., and should consult an attorney.

3. The vast majority of accidents that cause death and injury receive no coverage or attention from news organizations or the Attorney General of the United States.

Victims of those “lesser” tragedies must seek out a “private attorney general” – the trial lawyer.  By bringing lawsuits against dangerous drivers, doctors, drug companies and others, trial lawyers make the world safer and get compensation for those who have been harmed. Unfortunately, the concept of the “private attorney general” has been under attack, under the guise of “tort reform.”  And those efforts are working – particularly in the area of personal injury and wrongful death claims, where changes to the law make it increasingly easier for bad actors to get away with killing and maiming our fellow citizens. More about these new laws in coming weeks.

Friends.  What a nice centerpiece for a multibillion dollar cyber marketplace that provides you with a portal to the world.  What started as a college-based phenomenon has morphed into a universal playground for people with two things:  a computer and time.

Friending, poking, chatting, posting – all fun and games, right?  Wrong. Facebook is a two-way street, and the list of people who will use your Facebook page against you grows daily.  A photo of yourself engaging in questionable activities, posted by you or a friend, may find its way to parents, frat houses or even a new boyfriend or girlfriend.

College authorities view Facebook, looking for underage drinking, and police (including the FBI) view social media for evidence of criminal activity.  The Secret Service has investigated a MySpace threat to President Bush and Facebook threats to President Obama.

If you believe the “security” offered by Facebook and other social media protects you from probing eyes of others, think again.  Investigative firms advertise their ability to bring home the Facebook bacon so they can fry you in court.  Google “investigation firms Facebook” and you will see how many private eyes are looking at social websites.

Prospective employers view Facebook (and other social network) pages to see if a candidate is unsuitable for hiring.  Many law firms do a Facebook check on every prospective employee and have refused to hire people whose web persona is not in keeping with the image they want their firms to portray.

Current employers may monitor employee Facebook pages, often with real consequences.  When you post online while you are supposed to be at your post (desk) doing work, guess how easy that is to figure out.  Your entries are date- and time-stamped.  Your work computer, and everything on it (including emails, Facebook pages and stored passwords), belong to your employer, and that computer can be read or monitored by your boss without your knowledge or permission.   Even banks use Facebook to scrutinize you.

Now, we have litigation invading the Facebook clubhouse. Lawyers look up their clients and opposing parties, and they are not searching for their taste in music.  They are looking for ways you might be embarrassed or impeached (made to look dishonest) in court.  And “Deadbeat Dads” may find a judge staring at a photo of their new car, boat or girlfriend’s jewelry, recently downloaded from Facebook, as they consider the punishment for failing to pay child support.

Facebook is fun, but it is not all games.  In a world increasingly tied to the internet, it is impossible to maintain one persona online and another offline.

In other words:  You are what you post.