August 2010

This afternoon in Douglas County, my former home, a 2001 Ford Explorer crashed due to tread separation on a tire and predictable driver reaction to that event. The 39 year old driver from Austell was killed.

Tire failure is a well known cause of fatal crashes. Some time back I made the joint damages presentation for a team of products liability lawyers who recovered a total $9.2 million for members of a college cheerleading squad who were riding in a passenger van that rolled over after tread separation in a defectively manufactured tire.

As a a trial attorney based in Atlanta, some of the more interesting cases on which I have worked have involved defectively designed or manufactured vehicles.

This week the National Highway Safety Traffic Administration launched an investigation of the safety of gas tanks on three million Jeep Cherokees. The investigation covers Grand Cherokees in model years 1993 to 2004.

The advocacy group Center for Auto Safety in October asked NHTSA to review whether the gas tank’s position below the rear bumper and behind the rear axle could cause fuel to spill if the SUV were struck from behind. The group also said that the neck of the fuel tank could tear off in crashes.

The risk of explosion, fire and catastrophic injuries with that design cannot be ignored.

Fortunately for people harmed by explosion of one of these gas tanks, Chrysler Group LLC agreed to assume legal responsibility for injuries drivers suffer from defects in vehicles produced before it emerged from bankruptcy protection..

The Center for Auto Safety says that the Grand Cherokee fuel tank storage system was defective and posed a hazard in a crash in that the plastic fuel tank  was behind the rear axle, extended below the rear bumper, and had inadequate shielding, leaving it vulnerable to rupturing or leaking in a crash. Chrysler put the fuel tank in front of the rear axle and shielded it in the 2005 model year.

It’s a long way from experiments with lab mice to clinical treatment of humans, and as a Georgia trial attorney in Atlanta, I only represent human spinal cord injury survivors.

However, it is interesting to observe progress in animal experiments that may someday carry over to treatment of humans.

According to an article published in Nature Neuroscience, researchers from UC Irvine, UC San Diego and Harvard recently announced they had induced nerve regeneration in mice with severe spinal cord injury.  They deleted an enzyme called PTEN (a phosphatase and tensin homolog), which controls a  molecular pathway that regulates cell growth. PTEN activity is low during development but turns on when growth is completed. Previously, researchers showed they could block PTEN in mice to regenerate nerve connections from the eye to the brain after optic nerve damage. The new research gives some degree of hope that such nerve regeneration could take place in the injured spinal cord.

Accutane is a drug originally developed for cancer treatment but that has been widely used for treatment of acne. Unfortunately, there have been widespread reports of terrible side effects, including bowel diseases including Crohn’s disease and ulcerative colitis. It was taken off the market last year.  As an attorney in Atlanta, Georgia, handling civil liability cases including products liability, I have been interested in this topic.

Earlier this month, according to a news article by Laura Clarizio, actor James Marshall was in court for a lawsuit against pharmaceutical manufacturer Roche in which he asserts that Accutane taken for acne caused the loss of his colon.

Personally, I have spent many a long night on cots in hospital rooms attending to a family member suffering horribly with Crohn’s disease. No one who has not seen the effects of this disease can really know how painful and debilitating it can be.

The word on the extended family grapevine tonight is that my wife’s cousin’s daughter, Alex McArthur, a recent Davidson College graduate, has been named Ms. Wheelchair America for the coming year. She has been in a wheelchair three years due to muscular dystrophy.

Last year, one of our clients, Alyson Roth, a spinal cord injury survivor, was Ms. Wheelchair California and a runner up for Ms. Wheelchair America.

Both Alyson and Alex are bright, beautiful and courageous young women.

For an attorney handling Georgia brain injury cases, the difficulty of sorting out causes and effects is both frustrating and fascinating. Now there is a study reporting that head trauma may produce a motor neuron disease syndrome that looks like ALS (amyotrophic lateral sclerosis), commonly known as Lou Gehrig’s disease. In fact, the researchers hypothesize that Lou Gehrig may not have had Lou Gehrig’s disease.

While the study focuses on concussions in sports and combat, perhaps it could be be applicable to head trauma in accidents.

Today the Georgia DOT settled for $600,000 a hotly contested wrongful death case that included claims of negligent right of way maintenance by the City of Hapeville, negligent highway design by GDOT, negligent taxi inspection by the City of Atlanta, and a taxi operating with bald tires on a rain slick roadway.

The more significant fact barely mentioned in the news story is the scandalous lack of safety accountability in Atlanta’s taxi fleet. Every day thousands of travelers take taxi cabs from the airport, blissfully unaware of the inadequacy of safety inspections or financial accountability in Atlanta’s taxi industry.

The city government has sovereign immunity with regard to negligent inspection of taxis, so there is no accountability to innocent victims when a city government lets a cab get by inspection with bald tires.

From the beginning of taxi service in Atlanta, cabbies have operated as independent contractors for the brand name taxi companies, with minimal liability insurance.

Last year, in the case of Lopez v. El Palmar Taxi, Inc., 297 Ga. App. 121 (2009), the Court of Appeals ruled once again that a taxi company is not vicariously liable for the negligence of its "independent contractor" driver who operated a taxi with the company’s logo, picking up passengers who called the company, and following the company’s rules, because the driver was deemed to be an independent contractor. At least in that case, the court allowed the case to go to the jury on a theory of apparent agency. However, a cab company can evade accountability under that legal theory simply by posting on and in the cab a subtle statement that the driver is an independent contractor.

Compounding the scandal is that taxi cabs in Georgia are only required to carry the minimum liability insurance required of all passenger cars, $25,000 per person and $50,000 per accident. Thus, a business traveler arriving at the Atlanta airport and taking a taxi downtown, who suffers a disabling injury due to even gross negligence of the cab driver or in the maintenance of the cab, can only recover $25,000.  If that business traveler is killed, his or her survivors may be unable to recover more than $25,000 from the taxi’s insurer.

By contrast, intrastate motor carriers who merely haul freight must have $100,000 liability insurance, and interstate motor carriers hauling freight must have at least $750,000 liability coverage. Moreover, the Federal Motor Carrier Safety Regulations prohibited trucking companies from hiding behind the "independent contractor" dodge since 1956.

My advice to visitors to our city arriving at Atlanta’s Hartsfield-Jackson International Airport is to avoid taking a taxi.  Either arrange to be picked up by a limo service, or take the MARTA train as I usually do.  When I came in from the west coast on a redeye flight Monday morning, MARTA was a clean, pleasant, convenient and cheap way to get to the Medical Center station where my wife picked me up.

My good friend Steve Gursten in Michigan just called to my attention a Michigan Supreme Court decision that s overturned  the nation’s harshest auto accident threshold law.

Under former Michigan case law, attorneys had told many people they had "no case" because Michigan law required that a bodily function be completely altered. Thus, people with severe injuries and debilitating pain were unable to recover damages for injury in a motor vehicle accident if they were eventually able to return to their ordinary activities.

Now, under the case of McCormick v. Carrier, people who seek compensation for injuries and pain and suffering have a better chance at a fair recovery. The McCormick decision say a person can qualify for pain and suffering damages if his or her normal life is affected — not completely altered, by an injury in a car wreck. 

Steve and I have talked for several years about how much better Georgia law is for people who are seriously injured through no fault of their own than is the law of Michigan. I’m glad to see that Michigan law has become a little less harsh.