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.

The minimum limits of automobile bodily injury liability insurance are $25,000 per person/$50,000 per accident.  Those limits go up to $30,000/$60,000 on January 1, 2011.  However, people with severe injuries often find these minimum limits do not cover all their medical bills, lost income, pain and suffering and other damages.   What can you do?

First, to protect yourself, buy uninsured/underinsured motorist (UIM) coverage. UIM coverage pays your damages when the other driver has no insurance or too small a policy.  Everyone should have at least $50,000 in UIM coverage, and more if you can afford it (your UIM coverage cannot exceed your liability coverage, so that is a consideration).

However, there is a legal doctrine that can actually make an insurer liable for more than the limits of coverage.  The “Stowers Doctrine” provides that insurance companies that negligently reject an unconditional offer of settlement within the limits of coverage may be held liable for the entire judgment.

If that sentence was complicated and hard to follow, don’t feel alone – many lawyers do not know the ins and outs of this doctrine! However, for those of us who work in personal injury law, it is a tool we use in selected cases.  In order to set up a “Stowers claim,” the plaintiff (injured person) must offer to settle all claims against the insured for the amount of the coverage.

This can be a calculated gamble, particularly if there is any chance of collecting a judgment in excess of the policy limits from the insured.  There may be other stakeholders in your claim, such as health insurers who claim a right of reimbursement or “subrogation,” who will have to be paid out of the settlement if the insurance company accepts the offer.   You should also make sure you have written permission from your UIM carrier.  Otherwise, you will be violating a provision of your policy and may not be able to recover UIM benefits.

This doctrine is not actually implemented unless the offer is rejected, and you go to court and obtain a judgment in excess of the policy limits.  If the defendant cannot pay the amount of the judgment in excess of his policy limits, you have the right to file a second lawsuit against the insurance company.  If you prove the insurer was negligent in failing to settle, you can recover the balance of the judgment from the insurer, even if that amount exceeds the policy limits!

You cannot turn a $25,000 case into $100,000.  However, if you have a $100,000 case, and the responsible party has only $25,000 in coverage, there is a strategy to try to collect the entire amount.

If you are in an accident, an adjuster or investigator may ask for your recorded statement.  Regardless of whether the adjuster works for your insurance company or the “other side” of the claim, the statement becomes a permanent record of your version of relevant facts.  Do not treat recorded statements lightly, and if your injuries are serious, talk to a lawyer first.

Unlike testimony in court or a deposition, you are not under oath when you give a recorded statement.  That is small consolation when the statement is played back to you at trial, and you have given incorrect information or left out important details.  Imagine an opposing attorney saying, “You may not have been under oath, but you said it, didn’t you?” Most personal injury jury trials revolve around the credibility of the plaintiff (i.e., whether you are telling the truth), so the other side will attack your credibility with a recorded statement.

Injuries that seem small at first may turn significantly worse. I have represented hundreds of people whose initial moderate neck or back pain ultimately led to surgery.  At the time of a recorded statement, you may have no idea that you will end up in a lawsuit.  Assume the recorded statement is important.

Here are some general pointers about typical traps people fall into when giving recorded statements:

1. Your medical history. You may have never had back pain this bad, but if you went to a doctor 20 years ago and complained of soreness in your back, say so.
2. Your current condition. Do not leave anything out that feels different, regardless of whether it is painful or related to the injury.  That numbness you feel on the front of your leg may be a symptom of a back injury.
3. Time, space and speed. Inaccurate details that can be measured can come back to haunt you.  You did not sit at a red light for “a few minutes,” the oncoming vehicle was not “a mile away,” and the other driver was not doing “eighty miles an hour” when he ran into you.  If you do not know an answer, do not guess!
4. Different kinds of recorded statements. Statements to police officers are recorded on accident reports.  Medical histories given to a doctor (verbally or on intake forms) are recorded in your medical records.  Jurors usually believe what they read on police reports or in medical records.
5. In Texas, only one party to a conversation must consent to a recording. You may be recorded without your knowledge!  Most insurance adjusters will ask your permission to record your statement.  Some investigators will not.  A good rule of thumb is: Whenever you speak with someone about an accident or your injuries, assume you are being recorded!

I have been accused of being too verbose (guilty) and even “too preachy.” Let me break from that pattern and merely pass on a report from the World Justice Project, which finds in its Rule of Law Index that the United States ranks last among eleven developed countries in access to justice for “ordinary people.”

Of particular note was the gap between wealthy and poor citizens in their view of the fairness of the legal system:

In the United States, “only 40% of low-income respondents who used the court system in the past three years reported that the process was fair, compared to 71% of wealthy respondents. This 31% gap between poor and rich litigants in the USA is the widest among all developed countries sampled. In France this gap is only 5%, in South Korea it is 4% and in Spain it is nonexistent.”

I’m not preaching.  I’m just saying this report is worth considering.  The U.S. has also fallen behind other developed countries in education.  How do we find it acceptable that our country comes in last in anything?

Martin Luther King said, “Injustice anywhere is a threat to justice everywhere.”

Have a great weekend!

Benzene is a component of crude oil known to cause health problems in humans.  Direct exposure to benzene has been linked to leukemia.  Exposure to benzene in the environment was a suspected cause of birth defects, but there was no ironclad proof.  Until now.

A recent federal study concluded that ambient (environmental) exposure of benzene to pregnant women can cause spina bifida in babies.  Spina bifida is a birth defect involving incomplete formation of the spine that can result in severe and permanent disability.  Spina bifida occurs more often in the Hispanic population, but the condition afflicts babies of all races and national origins.

This groundbreaking study, by the National Institute of Environmental Health Sciences is important because it provides mainstream scientific support for the claim that babies with spina bifida whose mothers lived in the shadows of refineries are victims of poisoning.  This means they can sue the polluters.

Under Texas law, scientific evidence must come from peer-reviewed research from generally accepted sources.  To prove a link between an environmental exposure and a health condition, the research must show more than a “doubling” of the risk.  This study meets both criteria.

This is particularly important to Southeast Texans.  As the Houston Chronicle reported on October 28, 2010, citing an EPA report, “Texas leads the nation in benzene releases, accounting for more than one-third of emissions among the states.”  While benzene releases have declined over the past five years, there are many children with spina bifida who may now have a right to recover damages.

If you know anyone who suffers from this tragic condition, tell them to read the study, and then call a lawyer.

Have a safe Halloween weekend!

DePuy Orthopaedics makes artificial hips.  Joint replacements are a juggernaut of healthcare profits, but as with other products, things can go wrong.  According to the DePuy website, their ASR hip products (the “resurfacing device” and the “total hip replacement”) are being recalled. “New data” shows 12-13% of these products fail.

If your car is recalled, the dealer takes out one whatchamacallit and puts in another.  Hopefully, no one has been injured.  When a hip prosthesis is recalled, the whatchamacallit is cemented into your body.  Taking it out requires surgery that is painful and debilitating, and may cause additional problems.

Under the “what to do” tab on the DePuy website, “patients” are directed to a claim process.  If DuPuy agrees you qualify, you may recover medical expenses and lost income.

There are other things DePuy does not tell you, such as your deadline for filing a lawsuit, your right to recover damages for pain and suffering, mental anguish and physical impairment, and how to make sure you are being properly evaluated by an independent orthopedic surgeon.  And FYI, DuPuy insists most people with defective implants will have no problems.

If you want to know all your legal rights, call a lawyer. Victims injured by defective products should seek legal advice that is in their (and not DePuy’s or some corporation’s) best interests.  That information is not on the product manufacturer’s website.  Most lawyers who practice personal injury law will advise you of your rights at no cost.

Victims of defective products should not rely on defective legal advice.  Call a lawyer.

Have a great weekend!

Early Voting begins today in Harris County.  Voting on Tuesdays is difficult for people who work.  Early voting solves that problem.  Vote early so you will not get caught in the Tuesday Squeeze, where you cannot get to the polls between 7am and 7pm.

There are 37 early voting locations, which you can find HERE.

For those of you who believe people with legitimate claims should have fair access to the courts, here are my endorsements.  I limit my endorsements to statewide and Harris County races that directly affect the civil justice system, and those in bold are hotly contested or particularly important (to me) races.

Before turning to the list, let me first hightlight one candidate endorsed (or at least rooted for) by every lawyer who actually practices in the district courts of Harris County:  Loren Jackson, who is running for reelection as District Clerk.

Loren has revolutionized the District Clerk’s office in two short years, and he has big ideas to make it even more user-friendly and accessible to lawyers and citizens alike.  Even if you are voting straight Republican (and I hope you aren’t), make an exception and vote for Loren Jackson.

Governor:  Bill White
Lt. Governor:  Linda Chavez-Thompson
Attorney General:  Barbara Ann Radnofsky
Justice, Supreme Court, Place 3:  Jim Sharp
Justice, Supreme Court, Place 5:  Bill Moody
Justice, Supreme Court, Place 9:  Blake Bailey
State Senator, District 13:  Rodney Ellis
State Senator, District 15:  John Whitmire
State Representative, District 126:  Casey McKinney
State Representative, District 128:  Joe A. Montemayor
State Representative, District 132:  Silvia Mintz
State Representative, District 133:  Kristi Thibaut
State Representative, District 134:  Ellen Cohen
State Representative, District 137:  Scott Hochberg
State Representative, District 138:  Kendra Yarbrough Camarena
State Representative, District 141:  Senfronia Thompson
State Representative, District 143:  Ana E. Hernandez
State Representative, District 144:  Rick Molina
State Representative, District 148:  Jessica Cristina Farrar
State Representative, District 149:  Hubert Vo
State Representative, District 150:  Brad Neal
Chief Justice, 1st Court of Appeals:  Morris Overstreet
Justice, 1st Court of Appeals, Place 4:  Michael Gomez
Justice, 1st Court of Appeals, Place 8:  Robert Ray
Justice, 14th Court of Appeals, Place 2:  Norma Venso
Justice, 14th Court of Appeals, Place 5:  Wally Kronzer
Justice, 14th Court of Appeals, Place 9:  Tim Riley
District Judge, 55th Judicial District:  Dion Ramos
District Judge, 113th Judicial District:  Christina Bryan
District Judge, 157th Judicial District:  Shawn Thierry
District Judge, 189th Judicial District:  Ursula A. Hall
District Judge, 190th Judicial District:  Olan Boudreaux
District Judge, 234th Judicial District:  Reece Rondon
District Judge, 269th Judicial District:  Katie Kennedy
District Judge, 270th Judicial District:  Bob Thomas
District Judge, 280th Judicial District:  Kathy Vossler
District Judge, 281st Judicial District:  Donna Roth
District Judge, 295th Judicial District:  Caroline Baker
County Judge:  Gordon Quan
Judge, County Court at Law No. 1:  Erica M. Graham
Judge, County Court at Law No. 2:  Cheryl Elliott Thornton
Judge, County Court at Law No. 3:  Damon Crenshaw
Judge, County Court at Law No. 4:  Bruce Mosier
District Clerk:  Loren Jackson
County Clerk:  Ann Harris Bennett

Friday is my favorite day to file a lawsuit.  It sets the tone for the weekend, knowing I am finished trying to make nice with some stubborn insurance company and “going to the mattresses.”

Unfortunately, Texas law does not permit you to sue an insurance company, unless the claim is actually against the insurer.  When you sue for somebody’s negligence, you’ve got to sue that somebody.  The insurance company hires the lawyer and pays the claim, but the defendant is the person at fault.

People know when they cause an accident.  They do not need a court to tell them they ran a stop sign or crashed into someone’s trunk.  People buy liability insurance so that legitimate claims will be settled without disrupting their lives.  Lawsuits are a hassle for both parties.  Plaintiffs and Defendants must produce documents, answer written questions under oath and appear for depositions that may last an entire day.  If a case goes to trial, there goes a week out of your life.

Certain insurance companies have a reputation for not settling claims.  They make low-ball offers and dare you to sue them.  Their business plan is to clog up the courts with claims that other, more responsible insurance companies settle.  It takes two to make a settlement.  A plaintiff’s unrealistic expectations can prevent a case from settling.  However, most lawsuits can be blamed on stingy insurers, not greedy plaintiffs.

When your car insurance comes up for renewal, ask your agent this question:  “What percentage of the  injury claims against your company end up in a lawsuit?  Price shopping is good, but “hassle shopping” is also important.

More on this subject (including naming names) in the future.

Have a great weekend!

This is not a political blog.  Having said that, can we talk politics?

Tea Party mobs scream, “I want my country back!” I disagree with their views, but I understand their anger.  Times are tough, people are hurting, and change is frightening.

What puzzles me is how many of the civil rights afforded to Texans have been obliterated by “tort reform,” and no one holds rallies or angrily shouts, “I want my state back!”

People call me with horrible stories of injury or death caused by defective products, dangerous premises or bad doctors.  They are dumbfounded when I cannot take their case because the laws have changed to make it legally or financially impossible to win.  They have been “tort reformed.”  Workers abused by worker’s compensation insurers are stunned they cannot find a lawyer and must fend for themselves in a system so complex Einstein would blush.  Some callers get mad at me, blaming the messenger. Many have heard the same bad news from other lawyers.  None of them get mad at the lawmakers and judges who have taken gobs of corporate and insurance money to slam courtroom doors closed.

If you don’t like socialism in the marketplace, why do you tolerate it at the courthouse?  When laws protect corporations whose greed-driven carelessness ruins your life, how does that differ from the government controlling healthcare?  Do you let “tort reform” happen because you have never been a victim?

Thanks to the Texas Supreme Court’s “Entergy” decision, the next time BP or its brethren recklessly causes death and destruction, it will be immune from being sued, even by non-employees.  Will anyone notice?  What will it take to open your eyes to the hijacking of your rights?

The U.S. Chamber of Commerce is raising a ton of money this election to run pro-consumer Democrats out of office.  A recent report finds the Chamber illegally raising foreign money (from oil sheiks in Bahrain, BP and undisclosed others) to influence American elections.

In Texas, Big Business is pouring big bucks into GOP coffers to elect lawmakers who will finish killing our civil justice system.  One target: the contingent fee legal contract (in their words, “the Holy Grail of tort reform”).  If you cannot hire a lawyer on a percentage fee basis, only big corporations and insurance companies will be able to afford lawyers.

These political strategists are counting on the folks who turned out in 2008 to sit out the 2010 elections.  They want you to stay home and watch more of your rights go up in smoke.  We need to show up and vote for candidates who put the interests of consumers and working people first.

People who have never been seriously injured by someone else’s negligence must think, “It will never happen to me.”  I hope you are right.  But if you are wrong, and you are left with a ruined life and no legal remedy, you may find yourself saying:

I WANT MY STATE BACK!