New AAJ Report Details a Year of Heinous Corporate Misconduct

From Takata’s lethal airbags to Monsanto ghostwriting scientific data, to drug companies profiting from the opioid crisis, corporations have time and again put profits before the health and safety of Americans.

A report released Wednesday by the American Association for Justice (AAJ), Worst Corporate Conduct of 2017, details this year’s worst corporate offenders, the aggressive corporate culture plaguing the United States, and the need for a strong civil justice system to make sure consumers and workers can hold corporations accountable and deter corporate misconduct.

As the report indicates, there are no signs that corporations intend to slow down their attack on Americans as they cut their compliance budgets and attempt to free themselves from regulation.

“The misconduct highlighted in this report is a stark reminder that corporations will stop at nothing to protect their profits – even if that means putting consumers and workers at risk,” said Kathleen Nastri, President of AAJ.  “As this report clearly illustrates, Americans need access to the courts so they can get justice and stand up to the onslaught of misconduct.”

One particularly timely section of the report is dedicated to Fox News, which for years has covered up rampant sexual harassment using forced arbitration clauses in employee contracts. Finally, in August of this year, the network revealed that it had paid nearly $50 million to settle sexual harassment and discrimination cases during the previous fiscal year.

Instances of sexual harassment, like those at Fox News, illustrate the need for reform to compel corporations to improve work environments and rein in misconduct.  The “Ending Forced Arbitration of Sexual Harassment Act,” which was introduced in both the House and Senate last week with bipartisan support, would restore workers’ rights by putting an end to the abusive practice of forced arbitration in workplace sex discrimination claims and give survivors of sexual harassment the opportunity to fight for justice in court.

Click here to download the full corporate misconduct report.

Watch the Webinar: Why TBI Treatment is so Important for Your Client

Watch the webinar, “Why TBI Treatment is so Important for Your Client” by visiting https://hmrfunding.com/blog/traumatic-brain-injury-webinar/.

Learn from professionals how to perform an initial assessment to determine if your client should be seen by a professional, and understand what options are available for care. A better understanding of the seriousness of a TBI can help your client get the treatment they may need and the verdict they deserve.

During this webinar with John Zacharias, founder and COO of Advantage Healthcare Systems and Dr. C. Alan Hopewell, a neuropsychologist with Advantage Healthcare discuss TBI identification and treatment options for your clients.

  • TBI Assessment – Simple screening options (including a TBI questionnaire)
  • Process and timeframes for evaluation such as neurologist, then neuropsychologist
  • Types of care; Day program, In-home and Telemedicine
  • Early identification and better results

View the webinar recording at https://hmrfunding.com/blog/traumatic-brain-injury-webinar.

This program is sponsored by HMR Funding.

Is your client either uninsured, underinsured or denied coverage for some reason? Does your client need funding assistance to pay for their medical expenses or pay for their living expenses while they recover from their injuries?

HMR Funding is your medical funding solution. We take the risk the same as you, so you can help your client pay for the treatment they may need to get on a path to recovery while you work to get them the justice they deserve.

450 Las Vegas Shooting Victims and Family Members File Lawsuits Against MGM and Live Nation

A solo gunman killed 58 people and wounded 489 others when he fired into the crowd of a country music festival in Las Vegas.

Attorneys representing families and victims of the October 1, 2017, mass shooting at the Route 91 Harvest Festival in Las Vegas have filed five negligence and wrongful death lawsuits against the hotels and concert promoter.

Texas attorneys Mo Aziz of Abraham, Watkins, Nichols, Sorrels, Agosto & Aziz and
Chad Pinkerton of The Pinkerton Law Firm, PLLC, filed lawsuits against MGM Resorts International, Mandalay Corp., MGM Resorts Festival Grounds LLC, Live Nation Entertainment, Inc., Live Nation Group d/b/a ONENATIONGROUP LLC, Contemporary Services Corporation, and the Estate of shooter Stephen Paddock.

Aziz and Pinkerton represent over 450 victims of the shooting, including two wrongful death claimants. The five lawsuits are filed in the Superior Court of California in Los Angeles, Central District. Each action alleges negligence, battery, assault, intentional infliction of emotional distress and, where applicable, wrongful death.

The acts of the solo gunman, who killed 58 people and wounded 489 others when he fired into the crowd of a country music festival last month from his Mandalay Bay hotel room, have already resulted in multiple lawsuits.

Failure to notice stockpiling of weapons

Prior to the shooting, Paddock used his VIP status to get exclusive access to a service elevator and Mandalay Bay, to stockpile weapons and ammunition in his suite without being noticed. He kept a “Do Not Disturb” sign on his room for days before the shooting, and installed security cameras on his hotel room door, in a service cart, and in the hallway.

The lawsuits charge that the hotel defendant failed to take notice or precautions against Paddock’s delivery of guns and his installation of surveillance outside his room. The lawsuits charge that the promoters failed to provide adequate emergency exits, or have a plan in case of a foreseeable terrorist attack.

Aziz and Pinkerton filed four lawsuits, including two wrongful death lawsuits for Dixie Roybal (File Stamped Complaint) and Christopher Jaksha. Mrs. Roybal’s husband, Christopher Roybal, and Mr. Jaksha’s wife, Rocio Guillen-Jaksha, were among the 58 victims killed during the mass shooting. The legal team also represents the family of Kristina Staples (File Stamped Complaint), a wife and mother who was shot in the head. Mrs. Staples remained in a coma for several weeks after the shooting. The fourth lawsuit was filed for 450 victims who were injured during the mass shooting.

California attorney Allen Michel of Gipson Hoffman & Pancione is also part of the legal team.

Also filed on Monday was a fifth lawsuit for five victims represented by
Aziz and Michelle Tuegel of Hunt & Tuegel, PLLC. One of these victims was 21-year old Paige Gasper who was shot in her right underarm, resulting in a lacerated liver and shattered ribs. The Gasper case has been transferred from Nevada to California by her legal team.

Each lawsuit includes negligence claims against MGM Resorts International, Mandalay Corp., MGM Resorts Festival Grounds LLC, Live Nation Entertainment, Inc., Live Nation Group d/b/a ONENATIONGROUP LLC, and Contemporary Services Corporation, and intentional tort claims against the Estate of Stephen Paddock.

Trial Readiness and Motorcycles Make Litigator’s Practice Flourish

Colorado attorney Tom Metier is a member a member of The National Trial Lawyers Top 100 Trial Lawyers.

Colorado attorney Tom Metier is a member a member of The National Trial Lawyers Top 100 Trial Lawyers.

When attorney Tom Metier calls an insurance company asking for the policy limits for a client, they listen. And it’s not just because he won $52 million at a 2016 trial, the largest personal injury verdict ever awarded in Colorado.

Defendants know that Metier will have his case ready to go to trial at the initial mediation. They also know that he’ll win at the trial, and will also pursue a second trial if necessary to collect bad faith damages.

It is this readiness to go to trial that is the foundation of The Metier Law Firm, where he practices with seven other attorneys. After 36 years as a lawyer, he still tries up to eight cases per year. “If you stay focused on being a trial lawyer, the business will take care of itself,” he says.

His trial prowess, combined with a strategic decision 10 years ago to add a motorcycle injury niche practice to his firm with Law Tigers, has grown his firm into seven offices in Colorado, Wyoming and Nebraska. Law Tigers brings his firm 150 new motorcycle cases per year. They fit perfectly with his practice representing catastrophically-injured people with brain and spinal cord injuries, burns, wrongful death and psychological injuries and PTSD suffered in plane crashes, trucking accidents, oil field and industrial workplace injuries, medical negligence and insurance bad faith.

Metier believes a trial attorney must practice his or her craft on a constant and continuing basis. “I will ask attorneys, ‘when is the last time you did an opening statement, direct examination, or cross examination?’ If they have to look at a calendar instead of their watch, they need to up their game,” Metier says.

Metier has taught trial skills at Gerry Spence’s Trial Lawyer’s College since 1995 and trains lawyers in numerous seminars and speaking engagements across the country. In 2017 he was named to the Top One Percent List of the National Association of Distinguished Counsel. Metier is a Board-Certified Trial Advocate, a member of The National Trial Lawyers Top 100 Trial Lawyers, a Regent of the Academy of Truck Accident Attorneys, and a Trustee of the National College of Advocacy for the American Association for Justice. He’s been listed as a Colorado Super Lawyer each year since 2006 and is named to The Best Lawyers in America.

Traumatic brain injuries


Metier initially earned his national trial reputation by representing clients with traumatic brain injuries. “Thirty years ago, I had my first brain injury case and realized they are very big cases. I learned the medicine and the psychology of how the brain works and began taking these cases to trial.”

That’s when Tracy, a 21-year old college student, came to his firm. Though her car was slightly damaged in a crash, her face had slammed into the steering wheel. She couldn’t remember her homework assignments, she got lost frequently and was overwhelmed by the ordinary noise of a grocery store. She cried constantly and had seizures. She had a traumatic brain injury and he agreed to represent her.

“As trial lawyers we are confronted by great mysteries. How is it that a person with these accomplishments won’t be able to navigate life? The injury doesn’t show up on an MRI, imaging or x-ray. How do we put a juror into the skin of my client to viscerally understand what she can and cannot do? This is all about trial skills.”

Faced with a plaintiff with a serious TBI but no outward injury, jurors will say, “you can’t give money for that.” This is where Metier’s genuine sincerity and storytelling skills come in.

“The juror is saying they don’t know how to evaluate those losses. They don’t know how to believe those losses. They don’t know whom to trust,” Metier says. “A trial lawyer must understand that most humans only think about 18 months ahead. The future beyond 18 months is foggy and unfocused. We need to take the jury on a trip into the future to understand what the plaintiff and her family are going to experience over their lifetime, and how our client’s life will change. It’s not an event in the past, it’s about what her life will look like over time.”

“A trial lawyer needs to understand what does aging do, what does therapy do, what does medication do. It’s not just numbers and future surgeries and treatment, but what it means in a person’s lifetime — 15 years from now they’ll have another surgery. What does that mean to their self-concept and their ability to live?”

$52 million verdict

In November 2016, a Denver District Court jury returned a $52 million verdict for Metier’s client, a mother of four small children whose car was hit by a negligent driver. Mendy Brockman and her husband were driving south on Interstate 25 near Denver when a motorist crossed into their lane and hit them. In the collision, her car rolled over, broke her neck and left her a tetraplegic — paralyzed from the cervical spine down with some residual arm function. “She is capable of wheeling her wheelchair, but can’t transfer in or out of her chair,” Metier said.

Metier and his team sued the negligent driver, windshield glass maker AGC Glass, seatbelt maker Takata and Honda. He settled with Honda and AGC Glass and went to trial against Takata and the driver. “The verdict was a product of the jury coming to understand what her life and challenges were going to be.”

Except for one juror, the jury was composed of young Millennials between age 21 and 30, unmarried and without children. “We had to teach a jury with no children what it’s like for a mother of four not to be able to even brush her daughter’s hair. It is a combination of bringing our client’s experience of the past and the future into the courtroom in real time present tense, so the jury experiences them as their own,” Metier explained.

He is now pursuing bad faith claims against Travelers to collect on the judgment.

“Some people ask me why I am I so dedicated to representing those that are seriously injured. If you are a trial lawyer you could do criminal defense work or corporate work or chase the big money. But helping people who are seriously injured for me is more meaningful.”

Motorcycles and law practice

During his free time Metier is an athlete who loves to ride motorcycles. Metier owns a pearl yellow 2007 Harley Davidson Road King Custom. This is a 96-cubic inch machine with big fenders and saddlebags that is designed to ride cross-country to the annual Sturgis Motorcycle Rally in the Black Hills.

He is currently having a bike custom built – using a 2016 Harley Super Glide. He’ll add a turbocharger to the 103-cubic-inch engine, which he may bore out. It will have a unique paint job and will be a little longer than earlier Harleys. “I want it to be a bike so that anybody who sees it says, ‘that’s an adventure.’”

It was a near-death crash on a motorcycle that first got him into law practice. At age 22 he was riding his Triumph Trident 750 in Illinois when a Toyota pulled in front of him. He hit it at 55 miles per hour, flying into the passenger window. He wore a helmet, but still suffered a concussion and knee injury. He woke up helpless and alone in a hospital — but was relieved to find that the motorcycle community was already helping him get his bike fixed.

“So I decided to go to law school in order to represent injured motorcyclists,” he says. After law school at the University of Iowa, Metier moved to Colorado and entered private practice, focusing on getting as much trial experience as possible across a wide variety of cases. Metier now provides trial and co-counsel services to clients and law firms across the country. Metier Law Firm has offices in Denver, Colorado; Cheyenne, Wyoming; and Omaha, Nebraska, as well as other locations.

150 new cases with Law Tigers

One way that Metier has built his firm is to become one of the first members of Law Tigers, a professional association of motorcycle injury lawyers founded in 2001.

Law Tigers generates 150 new motorcycle cases per year for his firm, and that number is increasing.  “The power of niche marketing, until you’ve experienced it, is unbelievable,” he says. “An attorney can have their own practice and identity, and also be a Law Tiger attorney. Being a Law Tigers member doesn’t limit who you are, it adds to who you are. Not only was it a great business decision, it’s a personal privilege.”

One of the problems for personal injury lawyers is they’re marketing to people who are already hurt. “But imagine you could have a community that looks to you before they are injured. With Law Tigers, you become an important part of the riding community first. As a result, for most riders there aren’t any alternative law firms in the riding community,” he says.

“There is a wonderful marketing program that Law Tigers provides to us,” he says. “We incorporate that into our practice in an ongoing team approach.”

The Law Tigers strategy is to dominate the niche of motorcycle injury cases in a particular state. This is accomplished through the green-eyed tiger brand, which is ubiquitous on TV, on the internet and in outdoor advertising. The brand is coupled with a grass-roots marketing program that makes an attorney a partner in the community of riders, reaching them where they shop, in motorcycle clubs they belong to and at events they attend.

“We have an ongoing relationship with motorcycle community, and as a result of that our phone rings with people who are motorcycle riders with new claims,” he says. “Not only are you able to prosecute a lot of very good PI cases, but the depth of appreciation and feeling of belonging with a niche market is extremely powerful. It’s Nirvana for somebody who loves to help people.”

For attorneys who have an ongoing successful practice, Law Tigers will more than justify itself. Adding a niche practice doubles up your success. For attorneys who are looking for a great way to build a practice, Law Tigers is golden.”

Giving back

Metier is also known in his community for giving back. He is a major sponsor of Realities for Children, a local charity that supports children who have been abused or neglected, and have been put into foster care. The program helps children with scholarships, school supplies, donated bicycles, monthly youth activities, and funds for emergencies.

“A lot of people have been abused as kids, and the motorcycle community is not immune. In the motorcycle community, there is a high devotion to kids who were abused and neglected,” Metier says.

Every Memorial Day, Metier’s firm is a major sponsor of the 2013 Guinness World Record largest-ever motorcycle poker run benefiting Realities for Children. Riding the Law Tigers scenic ride, motorcyclists pay an entry fee and got playing cards by visiting various locations. If they collect a winning hand, they win a prize. “Our firm annually generates hundreds of thousands of dollars for charities each year, by facilitating opportunities for others to give,” Metier says.

“Attorney rescue” cases

Metier also grows his practice with what he calls “attorney rescue cases.” This is when an attorney has taken a serious injury case, “and they realize they don’t have enough horses in the corral to take the case to trial.” As a strategy, insurance companies will try to swamp a plaintiff attorney in pre-trial motions so that they can’t focus on properly preparing for trial. Lawyers with substantial injury cases face stumbling into trial not fully prepared and exhausted. That is where Metier and his team come in.

“When we co-counsel a case, we meet very early, hopefully shortly after the case is taken. We’ll develop the damages and liability as it will be presented at trial. We test with focus groups. Every day a personal injury lawyer is not attending to trial preparation, they are being put on their heels. We bring our team in and overwhelm the defense with actions that they must respond to. Meanwhile, we’re putting the trial together, so when we get to mediation, we know what the value of the case is, we have witnesses, and everything is put together. If we can’t achieve our bottom line in mediation, we go to trial,” Metier says.

“Strength when you need it” is the motto Metier offers to attorneys who are co-counsel. “We want to help our brothers and sisters in the bar, and if we are able to help, we will.”

“Most lawyers settle cases. That’s never been my model,” Metier says. “I encourage every lawyer to be willing to take cases to trial.” Certainly, there are cases that should be settled, such as when the value of the injury exceeds the insurance coverage.

“However, for me, I couldn’t sleep at night if I thought I was settling cases that need to be tried. Insurance companies often won’t pay what they should for a brain injury, and so they won’t offer their policy limits. They won’t pay what they should without being forced to trial. We offer them the opportunity to settle for what makes sense for the client, and to the attorney. But if they won’t, we’ll go to trial and get a verdict. And if there is a second trial to get the insurance company to pay it, so be it.”

 

$15.57 Million Verdict Against Driver and Broker in Trucking Accident Case

A Philadelphia jury awarded $15.57 million to a pedestrian who was struck by a drunken commercial truck driver, who had a history of drunk and reckless driving that the company failed to discover.

Following a three-week trial, attorneys Alan M. FeldmanDaniel J. Mann and Edward S. Goldis of Feldman Shepherd in Philadelphia, secured the verdict against J.B. Hunt Transport, Inc. and driver Ricky Hatfield, finding Hatfield 60% responsible for the accident, and J.B. Hunt’s 40% responsible.

“Had J.B. Hunt performed even the most cursory background check, it would have discovered Hatfield’s terrible driving history that included a prior DUI while operating a tractor-trailer, and a prior reckless driving charge,” Feldman said.

The case is Isaac and Graciela Cerda de Espinoza v. J.B. Hunt Transport, Inc., Ricky Hatfield and Hatfield Trucking, Philadelphia County Court of Common Pleas, June Term, 2015, No. 2656.

Over 4X the legal alcohol limit

On November 19, 2013, plaintiff Isaac Espinoza was standing on the shoulder of I-81 in Gilford Township near Chambersburg, Pennsylvania, assisting a friend whose vehicle had become disabled.

While lawfully on the shoulder of the roadway, a truck-tractor operated by defendant  Hatfield left the travel lanes of the road and crashed into Espinoza and his friend. Hatfield fled the scene but was later apprehended and arrested by the Pennsylvania State Police.

His blood alcohol content measured .171, more than four times the legal limit for operators of commercial vehicles. Hatfield was convicted of DUI, assault with a commercial vehicle while intoxicated and other offenses, and is presently incarcerated.

In March 2013, Hatfield received motor carrier operating authority from the Federal Motor Carrier Safety Administration to have his own trucking company. He was recruited to haul freight as a contract motor carrier by J.B. Hunt’s brokerage division, which entered into contracts called “Outsource Carriage Agreements” with motor carriers, who were often one-driver, one-truck operations like Ricky Hatfield’s.

While the contract required the motor carrier applicant to certify that its drivers had no DUIs or reckless driving citations in the past 5 years, no effort was made by J.B. Hunt to conduct a background check to corroborate Hatfield’s claim of a clean record, or to otherwise obtain references or information about the safety history of Hatfield.

Had J.B. Hunt checked, it would have learned that Hatfield had in the preceding 5
years had a conviction for DUI while driving a tractor-trailer, two reckless driving violations, a speeding citation for driving a commercial vehicle in a construction zone, and had been dismissed from prior employment with a trucking company for failing a drug and alcohol test during which he tried to bribe the person who was administering the test to him.

Defense: driver should have screened himself

J.B. Hunt maintained that it had no responsibility to screen or vet Ricky Hatfield, who was doing business as Hatfield Trucking. J.B. Hunt contended that under applicable federal regulations, motor carriers were responsible for screening their own drivers, and that accordingly, Ricky Hatfield should have screened himself.

The plaintiff needed to establish that Hatfield was actually performing work under the contract at the time of the accident. Hatfield, testifying by video deposition taken at the prison where he is incarcerated, stated that he was not working for J.B. Hunt or anyone else at the time of the accident, but rather had the day off, and had made a personal decision to become intoxicated. Another issue was that when the accident occurred, Hatfield was 125 miles away from the location he had been dispatched to and was headed in the opposite direction.

To counter this testimony, Plaintiff introduced evidence that on the day of the accident:

• Hatfield was under dispatch by J.B. Hunt to pick up a trailer in Fredericksburg, Virginia the following day, and remained under dispatch at the time of the accident.
• The dispatch had been confirmed by a load tender form sent to Hatfield by J.B. Hunt.
• Hatfield had used his J.B. Hunt debit card to purchase nearly $500 worth of diesel fuel in preparation for picking up the load the following day.
• Hatfield had also used his J.B. Hunt debit card to obtain a $100 cash advance, which he used to buy the bottle of liquor found outside his truck after the accident
• Hatfield was operating his tractor, rather than his personal vehicle, because he needed the tractor to hook up to trailers in his work for J.B. Hunt.

Espinoza sustained serious and permanent injuries which left him with a completely non-functional right upper extremity, limited use of the left upper extremity, multiple pelvic fractures, rupture of the diaphragm, multiple cervical fractures requiring cervical fusion surgery and a traumatic brain injury.

He requires attendant care 24/7, which is provided by his family at his home. Espinoza suffers chronic pain unrelieved by medication, and he will never be able to engage in gainful employment or recreational activities for the rest of his life.

Florida Jury Awards $45 Million in Truck Crash that Killed Medical Student

Plaintiff Raymond Astaphan’s was killed when his car struck a truck that was making a U-turn across four lanes of traffic in the dark.

After a four-week trial, a Broward County, Florida, jury returned a $45 million verdict against a construction company whose truck driver caused a multiple-vehicle crash that killed a 29-year-old medical student.

Ranger Construction Industries, Inc. had a contract with the state of Florida for construction along Interstate 75, most of which was in the highway median. One of its truck drivers, Juan C. Calero, attempted to make a U-turn in Pembroke Pines, FL, crossing all four southbound lanes of I-75 into oncoming traffic at 11:35 pm on May 28, 2015.

Plaintiff Raymond Astaphan’s car struck the trailer, shearing off this roof and killing him on impact. Patrissia Rolle, 26, a doctor, was a passenger in his vehicle and she suffered multiple orthopedic injuries and a brain injury. A 17-year old woman in another care was also killed, and an 18-wheel tractor-trailer also collided with the construction truck.

The plaintiff argued that the only safe way off of the I-75 median construction site that night was with a lane closure, proper supervision, lighting, and the assistance of Florida Highway Patrol. Instead, Ranger Construction and its supervisor left truck driver Calero unsupervised in an area he had never been to before, in complete darkness.  Ranger loaded up the flatbed tractor-trailer with an 80,000-pound load of concrete barrier wall and instructed Calero to drive about one mile south, to the Miramar Parkway Bridge, for unloading.

Based on e-mails uncovered by the plaintiff’s legal team, Ranger Construction supervisors and managers simply blamed the truck drivers and the motoring public for the problems construction vehicles were having entering and exiting the medians. Ranger Construction allegedly did nothing to fix the danger it was imposing on the roadways. 

At trial, the plaintiff argued that Ranger Construction Industries, Inc. not only put lives at risk of harm and death, but also violated the terms of its contract with the Florida Department of Transportation requiring it to give construction vehicles a safe means of exiting median construction sites on I-75.

The jury found Ranger Construction Industries, Inc. violated its contract with the FDOT and found Ranger Construction Industries, Inc. negligent in causing the death of Raymond Astaphan

The jury found the defendants responsible and entered a $20 million verdict for compensatory damages.  The jury also awarded punitive damages of $25 million against Ranger Construction Industries, Inc. and $5,000 against the truck driver. The jury also found that Calero was Ranger Construction Industries, Inc.’s agent and that Ranger Construction Industries, Inc. was engaged in an inherently dangerous activity.  The jury apportioned fault equally between the two defendants.   The entire verdict was for $45,005,000.

“This case is a reminder of how powerful and important our third branch of government is for enforcing safety and protecting everyone from harm,” said Stuart Ratzan, lead trial counsel for the plaintiff.  “Through its verdict, the jury, a cross-section of our community, with humility, discipline, and order understood that highway construction companies must follow the rules, not just in Broward County, but all over the country,” Ratzan said.

Raymond Astaphan is survived by his parents, Jennifer and Reginald.  “They are heroes…heroes for our community and for us all,” said Ratzan and Weissman.

The Plaintiff was represented by Stuart N. RatzanStuart J. Weissman, and Evan Gilead of Ratzan Law Group, P.A.Miami, Florida.  Ratzan Law Group was assisted by Lincoln Connolly of Lincoln J. Connolly Trials & Appeals, P.A. 

A Case of Insurance Misconduct Shows the Importance of Bad Faith Law

By Theodore C. Levy 

The rights of every American citizen depend on the regulation of the conduct of insurance companies. The relationship between an insurer and an insured is asymmetric, in that the insurer is the powerful one, and the insured is the less powerful party, who needs to be able to rely on their insurance company to act fairly.

The insurance behemoths such as State Farm, Allstate, Progressive, GEICO, Liberty Mutual, etc., are multi-billion dollar companies that have a drastic advantage when dealing with their insureds. Besides the obvious advantage that most insureds will not have the monetary resources to fight their insurance company, most will not have the actual knowledge about what claims they need to bring, when their claim needs to be brought, and what amount money their claim is worth. The insurance company shares both this financial advantage and the analytical advantage. 

Insurance companies are for-profit entities and they need to earn money to stay in business. They can do so by properly investing the income they earn off of premiums. They can do so in choosing to write policies only to some people who do not present much risk, and declining to write policies to others. They can do so by aggressive advertising campaigns promising that they are “on your side” or “you’re in good hands.”

However, there is one place where it is entirely inappropriate for an insurance company to be focused solely on profits. That is claims brought by their own insured under a policy that the insured pays premiums on every month for the right to bring a claim. Why is this so important? It’s because of the commodity that they are selling. A car dealership sells cars. A realtor sells homes. An insurance company sells a promise. The promise is that when you pay for insurance with us, you will have the right to make a legitimate claim under the policy. They will take your claim seriously. They will promptly return your calls and correspondence. They will inform you if you are about to blow a deadline to file a lawsuit or if there is a claim that you are able to make that you are unaware of as the uninformed insured. They will make a settlement that is in the realistic range with efforts to avoid drawn-out litigation.

If the insurance company has a policy that amounts to aggressively fighting legitimate claim brought by their own insureds, that is not only unethical, it is stealing. The reason why this is stealing is that an insured pays every month for the right to assert such a claim. The insureds are not paying for a ruthless opponent who will drag things out for years, try to deny coverage on technicalities, compel litigation, accuse them of lying, etc. If an insurance company acts this way, the insured is paying something and getting nothing in return. 

Bad faith statutes

Some states have laws that allow an insured to sue his own insurance company for bad faith for a variety of improper conduct by the insurer. The punishment for acting in bad faith may involve the imposition of punitive damages, the payment of attorney’s fees, the payment of the costs of a party, and other damages. The reason that it is so important to have such a statute is that it helps to even out the power imbalance between an insurer and an insured. Only when the prospect being slammed with a  bad faith verdict and paying punitive damages is a possibility does the insurer understand that the best financial decision that they can make is to treat their insured fairly.

Think about this. Let’s say you have collision coverage on your vehicle. There is $10,000 of damage caused to the vehicle by an accident, and you make a claim under your policy to have the vehicle repaired, the same policy that you make payments on every month. Let’s say the insurance company makes an outrageous claim that the damage is unrelated to the accident, or that you failed to mitigate damages or another baseless defense. They decline to pay for your car. 

Your only option is to sue your insurance company. However, they have a ton of money, adjusters crunching the analytics, and attorneys on staff who are much more knowledgeable about the court system than you. So what is the plan? It’s time to hire an attorney. But it’s only a $10,000 claim. On a 33-40% plus costs fee, you would only likely get $4,000-$6,000 after your attorney gets paid, roughly half the value of the car. You could pay hourly and get billed $200-$300 per hour. The result would likely be the same. The insured gets a far less than complete recovery, and that’s assuming they can even find a lawyer to handle such a case.

Every state should have a bad faith statute. There should also be a federal bad faith statute so that where you live does not limit your rights against insurance companies. The bad faith statute must provide for punitive damages, attorneys fees, legal costs, and other damages that a court sees fit. 

I practice in two states, Pennsylvania and New Jersey. Pennsylvania has a bad faith statute. When an insurer has acted improperly when dealing with my client, the threat of a bad faith lawsuit, or in some cases, the filing of a bad faith lawsuit, has made the insurer back down and do the correct thing, whether that means offering more money on the claim or agreeing that coverage for the loss exists. New Jersey has no such statute. The only bad faith is common law bad faith, which is rarely applied in any case. Thus, in New Jersey, insurance companies can do pretty much whatever they want without the fear of any consequences. 

An illustrative case

A case that I had recently was illustrative. The plaintiff suffered a herniated disc with cervical radiculopathy in her neck as a result of a crash in which the tortfeasor crossed the median of a road and hit another car head on, throwing that car into the plaintiff’s car. The only coverage to go after was the plaintiff’s underinsured motorist (UIM) policy. The plaintiff did not desire to file a lawsuit against her insurance company, wishing to settle pre-suit. However, her insurer would not budge above $10,000, an arbitrarily low number. 

In all efforts to avoid litigation, we set up a non-binding arbitration hearing under her insurance policy. Written discovery was exchanged prior to the arbitration and the plaintiff submitted to a pre-suit independent medical examination. 

The format for the arbitration was both the plaintiff and her insurer selected their own arbitrator and those two arbitrators selected a neutral arbitrator. After deliberating, the arbitrators (even the one hired by the insurance company) returned a unanimous award for $65,000. The defense rejected the award, which is not a big deal in and of itself, given the non-binding nature of the proceeding. The thing that was shady was not that they were unwilling to pay $65,000, it was that they still would not budge above $10,000. Therefore, it was a pointless arbitration, a waste of everyone’s time. The insurance company, from the start, knew that they would only accept the arbitration award if it was some minimal number that was in line with their offer, they would not accept any information that was not compatible with their original analysis. 

Baffled by their total unwillingness to negotiate despite the $65,000 award, I called the insurer’s defense lawyer. In the phone call, he conceded that they fight UM and UIM cases very hard because the worst case scenario is that they have to pay the policy limits, and not an award that exceeds the policy, as they would in a third party case. I was shocked by his honesty. What he told me was something that I suspected, that internal policies existed at this insurance giant that says that they fight every case hard.

I filed a lawsuit for UIM benefits under the plaintiff’s policy at this point. During the course of the lawsuit, the insurance giant answered interrogatories accusing my client of causing the accident. As a reminder, the accident was caused by the other driver crossing the median of a road and hitting the car right next to my client’s car. The insurance giant knew that my client did nothing wrong. They knew that no information could possibly arise that could indicate my client had a role in causing the crash. They merely did it to preserve the defense, to be a tough opponent. 

I’d had enough, filing a bad faith lawsuit. However, unlike in Pennsylvania where you could litigate a bad faith lawsuit concurrently with the UIM action, in New Jersey, these actions are severed. My bad faith claim was dismissed and I was told that I could refile it after the UIM case was over. As a practical matter, I would have to get a trial verdict that greatly exceeded the offer before I could do anything to punish the insurance company.

The litigation continued. Depositions were taken. Eventually, the court arbitration was scheduled. At this hearing, a court-appointed arbitrator reviewed our packets, heard some brief testimony from my client, and awarded $50,000 in favor of my client. 

At this point, it seemed like everything was going to work out. The insurance giant scoffed at the first arbitration award. However now that there was a second arbitration award in the same range, surely the insurance giant would take a second look at this one. Even if they wouldn’t pay the $50,000, they would come to the negotiating table. I was very wrong. 

Insurance stonewalling

I sent a letter to the defense stating that I would accept the $50,000, even though it was the lower of the two arbitration awards. Not only did the defense appeal, they refused to raise the offer above $10,000. There was nothing to do at this point but to gear up for trial. 

The insurance company was going to have to pay their doctor thousands of dollars soon. They would be paying their lawyer thousands of dollars as well for the doctor depositions and trial. Surely this would make them come to the negotiating table. Wrong.

The plaintiff’s doctor testified by videotape. No change in the offer. The defense doctor testified by videotape. No increase in the offer. It had reached the point where there was no doubt whatsoever that the insurance giant had spent more money fighting the case than they had offered in settlement on it. Why would the insurance company want to pay lawyers and doctors instead of their own insured?

My only option is to crush them at trial. A jury hearing that my client’s own insurance company would rather attack her than pay her in a perfectly good case would anger the jurors and get them to award a fair verdict that greatly exceeded the offer. Afterwards, I would pursue the bad faith case and hopefully get a punitive damages award on top of the trial verdict. 

Unfortunately, this never happened. In New Jersey, the law dictates that the jury will not hear about insurance, even though the insurance company was the actual party to the case. Instead of trying a case against the insurance giant who would do anything to not pay, I tried a case against the tortfeasor, who had died in the accident.

Several of the jurors, when doing voir dire in the back room, expressed concerns about how this case involves a dead person being sued. I wanted to scream out, “it’s her own insurance company pretending to be a dead guy. They literally will stop at nothing.” However, obviously, I did not do that. That would have been a mistrial. 

The defense came up to $15,000 during the trial. They never went higher. My opposing counsel went after my client and her husband extremely aggressively on the stand. My client and her husband did not even wish to sue and it was her insurer who compelled the lawsuit by not negotiating after the arbitration award. My client had never sued anyone else in her entire life before. She had lived a good life. She had never done anything in her life to deserve to be attacked and called a liar on the stand. 

The trial concluded. My closing went very well. I hit all my points, showing how frivolous the defense arguments were. I noticed that my client had teared up a little when I walked over to her after finishing the closing. Everything was going to work out. So I thought. 

A shocking outcome

The jury went out and deliberated. Liability was stipulated to. The defense admitted causing some injury. Therefore, the one and only question that the jury had to answer was how much money to award the plaintiff. This would probably take an hour at most. I was wrong. The jury was out for nearly five hours. This was longer than the OJ Simpson jury deliberated. What on earth could they be talking about for so long? 

Finally, after spending my entire Friday in the courthouse, there was a verdict. $5,000. A nominal award. One-thirteenth of the amount I was awarded in the pre-suit arbitration. One-tenth of the amount that I was awarded in the court arbitration. $5,000 doesn’t even cover my file costs. My firm lost money. My client got zero. I spent probably 100 hours of my time.

It was obvious to me why they deliberated for so long. There must have been several jurors who did not want to slam the estate of the defendant. The State of New Jersey does not allow me to discuss the deliberations with jurors, so I’ll never know for sure. But I can picture the arguments that happened in that jury room. Something about making this dead person pay did not seem right to them. Hadn’t his family suffered enough? Why were the lady and her shady attorney picking on the dead?

I’ve gotten pretty good at concealing my emotions when in court. When things don’t go my way, I shrug it off and move on. This was different. This was not a case with a liability issue. This was not a case where there was no damage to the car. This was not a case where a tort threshold applied requiring my client to prove a permanent injury. There were no issues with this case.

I walked dejected to the parking lot. My client thanked me and told me I did a great job regardless of the outcome. We embraced. I continued to my car. A juror passed me in her car, rolled her window down and said just one word. “Sorry.” I nodded my head and walked past. When I got home I checked my e-mail and it turned out the same juror who said “Sorry” had e-mailed me. She told me that I did a great job and it was not my fault that the award so low. Given that the rules in New Jersey do not allow me to discuss the deliberations with jurors, I did not respond. 

I’m sorry too. I’m sorry I couldn’t get money for my client who was a nice lady and was extremely deserving of it. I’m sorry to myself for having wasted so much of my time. I’m sorry the laws did not allow me to disclose to the jury that I was suing my client’s own insurance company, and was not picking on the deceased. I’m sorry that this no doubt will happen to others. It will happen to people more seriously injured to my client. It will happen to people who have medical bills and are out of work and will rely on this money to survive going forward. I’m sorry that insurance carriers have such a powerful lobbying influence in the legislature. How they have sold the American public on tort reform. How they state that insurance rates are going up because of “frivolous lawsuits.” Civil filings have been consistently down. Some “lawsuit epidemic.” Insurance companies and large corporations have sold the American public on a false narrative and convinced people to give up their right to sue in many areas with the vague promise that insurance rates will go down. Insurance rates remain very high, and people have fewer and fewer rights to file in civil court every year.

Insurance companies need to be held accountable. Most people don’t file lawsuits. Most people don’t like personal injury lawyers.  Most people come into court expecting, even hoping, that the plaintiff will be exposed as a liar. However, even these people might be in a  situation one day where they are badly hurt and a lawsuit is the only choice. This person will believe it would be different because they would be actually hurt, and the insurance company would know their case was legitimate and pay. And they’d most likely be wrong. That person may find himself put on the stand and called a liar solely because some insurance company wants to protect its money. 

The situation I described never would have happened in a state where there was a bad faith statute that was actually enforced. Without one, it’s the insurance companies that rule, not us.

School Girl Hit By Car in Dangerous Crossing Recovers $36.1 Million

Isabella Escamilla Sanchez

Isabella Sanchez suffered a traumatic brain injury when a car hit her as she walked to her school bus.

A San Bernardino Superior Court jury awarded an 11-year-old girl $36.1 million for severe injuries she suffered when a car struck her as she tried to cross the street in order to board her school bus.

The accident took place in Highland, CA, on the morning of October 3, 2012, when the plaintiff, Isabella Escamilla Sanchez, was six years old. She attempted to cross 9th street mid-block to get to the bus stop where her school bus was en route to Bonnie Oehl Elementary School.

The driver of a Subaru Impreza struck the child, causing catastrophic injuries that include a traumatic brain injury and fractures to her neck, arm, leg and pelvis.

The jury found Durham School Services and one of its drivers 80% at fault and Isabella’s mother, Carina Sanchez, 20% responsible. The jury did not find any negligence on the part of the Subaru driver. The trial lasted 5 weeks and the jury deliberated two days before reaching a verdict.

Failure to report mid-street crossings

The Sanchez family sued Durham for failing to report and prevent mid-street crossings, which is a blatant violation of its own policies and procedures. It was a common practice for parents and students to cross 9th street mid-block directly in front of the Durham bus.

All the parents with children at the same bus stop testified at trial that they never used the controlled intersection near the stop because they didn’t appreciate the danger and always crossed in the middle of the block. Parents testified that they frequently crossed the street in plain view of Durham bus drivers who never took steps to prevent this behavior.

The San Bernardino School District’s transportation director stated at trial that the drivers are the “eyes and ears for the school district” and that the district relies on drivers to report dangerous conditions at bus stops including unsafe mid-block crossings.

Witnesses for both Durham and the district testified that an effective progressive warning process to parents, begins with a verbal warning, then a written report and eventually a student losing bus privileges if the behavior is not corrected. However, in order for the process to work the dangerous behavior has to first be reported by drivers. According to testimony, the bus drivers never notified the district of the mid-block crossings.

24-hour nursing care

Isabella’s mother, Carina Sanchez also accepted a portion of the responsibility for the accident at trial, and her attorneys argued that Durham should also accept its own share of responsibility for allowing this conduct to occur for two months unchecked.

“More than anything I don’t want any other little kid to go through what I’ve been going through,” Sanchez told the Los Angeles Times. “We’re trusting the bus companies with our kids, for them to have a better future, and we don’t want nothing to happen to them.”

Isabella’s traumatic brain injury requires 24-hours a day, 7-days a week licensed vocational nursing (LVN) care for the rest of her life. The money awarded by the jury will go into a court-approved trust fund to cover the cost of Isabella’s medical care.

“This is an important victory for Isabella and the community. We hope this will lead to drivers being more vigilant about bus stop safety,” said lead plaintiff attorney Geoffrey Wells. “If Durham had followed its own policies and procedures this accident would never have happened,” added Wells.

“Parents and bus companies both need to exercise more caution when kids are going to and from their bus stops,” said plaintiff attorney Ivan Puchalt. “The important thing for Isabella is that now she will have enough money set aside in a trust to take care of her medical needs for the rest of her life.”

“I am very happy that we were able to bring justice and accountability to Isabella’s family. We hope this verdict sends a message to school bus companies to follow their own rules so we can prevent such a tragedy in the future,” said co-counsel Andy Basseri.

The plaintiff’s legal team included attorneys Geoffrey WellsIvan Puchaltand Christian Nickerson with the Santa Monica Plaintiff’s firm Greene Broillet & Wheeler, LLP and Andy Basseri with the Law Offices of Andy Basseri of Beverly Hills and Rancho Cucamonga.

Child Sues Chicago Board of Education over 5 Years of Sexual Abuse by Employee

Chicago plaintiff attorney Lyndsay A. Markley

Chicago plaintiff attorney Lyndsay A. Markley is an NTL Top 100 Trial Attorney.

A former elementary school student filed suit against the Chicago Board of Education, claiming he suffered years of sexual abuse by an employee who organized school sponsored programs for students.

According to the complaint filed by Chicago attorney Lyndsay Markley, the CBE knew that the accused perpetrator, Marvin Lovett, was not fit to work with children, but continued to employ him despite receiving warnings that Lovett was acting inappropriately towards male minors.

“We believe that the evidence in this case will show that the CBE allowed a predator to walk the halls of an elementary school for years preying upon innocent children.  My client deserves to be compensated for the horrific abuse he suffered at the hands of a CBE employee.  All children deserve to be safe. The CBE must be held accountable and take action to ensure that this tragedy is not repeated,” Markley says.

The case is John D. Doe v. Board of Education, No 2017L008977, Circuit Court of Cook County, Illinois. The boy was abused from 1988 through 1993 while attending James Weldon Elementary School in Chicago’s North Lawndale Community.

20th victim

This is the 20th victim to come forward with an allegation of sexual abuse with against Lovett and the first plaintiff in a lawsuit only against the BOE. The other 19 plaintiffs claim that they were abused during Lovett’s employment with the United Airlines Believers Program in a lawsuit filed against United Airlines, Inc., the BOE, and I Have A Dream Chicago, Inc.

Sylvester Jamison shot Lovett to death in his apartment in 2000. Jamison, then aged 17, told police that Lovett had sexually abused for years. During the police investigation, 140 video tapes were found in Lovett’s apartment depicting sexual acts involving African-American male minors.

Markley represents a number of other plaintiffs with allegations of sexual abuse against Lovett during his time as an agent of the BOE and intends to file these over the next several months.

“All parents deserve to feel safe entrusting their children to Chicago Public Schools for an education.  All children can, and should, be safe attending school. This case is a parent’s worst nightmare: sexual abuse of their child by a man the Chicago Board of Education empowered,” Markley says.

Lyndsay Markley is an NTL Top 100 Trial Attorney. She has dedicated her legal practice to fighting on behalf of persons who suffered injuries or death as the result of the wrongful or careless conduct of others.

Philadelphia Jury Awards $57.1 Million in Ethicon Pelvic Mesh Verdict

Mesh manufacturer knowingly continued use of resin dangerous to human bodies.

A jury in Philadelphia awarded more than $57 million to a woman who was internally scarred and left incontinent by a defective Ethicon pelvic mesh implant made by Johnson & Johnson. The award, the largest so far in several recent mesh injury trials in the state, includes $50 million in punitive damages.

The jury found in favor of plaintiff Ella Ebaugh, determining that two of Ethicon’s mesh devices had caused internal mutilations permanently impairing her urinary system. The case is In Re: Pelvic Mesh Litigation, Case No. 140200829.

Attorneys in the case said the verdict sends a message to J&J and Ethicon about the impropriety of their conduct surrounding the design and marketing of the dangerous surgical mesh devices. Of the two mesh devices that were the subject of the lawsuit, one has been recalled but the other, Ethicon’s TVT product, remains on the market even as substantial numbers of mesh injury lawsuits continue to move through the courts.

29,905 federal lawsuits

In separate litigation, Ethicon faces 29,905 federal lawsuits consolidated before US District Judge Joseph R. Goodwin in MDL 2327, IN RE: Ethicon, Inc., Pelvic Repair System Products Liability Litigation.

The previous highest-result mesh injury case from the series ongoing in Pennsylvania was $20 million. Ethicon has stated it intends to appeal the jury’s decision in Ms. Ebaugh’s case.

The previous highest-result mesh injury case from the series ongoing in the Philadelphia  Court of Common Pleas was $20 million. Some 130 pelvic mesh lawsuits are pending there in a mass tort program. Ethicon has stated it intends to appeal the jury’s decision in Ms. Ebaugh’s case.

Ethicon and Johnson & Johnson have prevailed in a single Pennsylvania pelvic mesh trial.  Four Philadelphia juries have awarded Ethicon plaintiffs $12.5 million, $13.6 million, 17.5 million, and $20 million in damages.