Norfolk-Portsmouth Personal Injury Lawyer

Easing of Positive Train Control Requirement Endangers Railroad Workers

Richard N. (Rick) Shapiro — Fri, 11 May 2012 08:53:02 GMT

Years of effort to take much of the value out of a federal regulation requiring U.S. railroads to install life-saving technology on trains and along tracks paid off for the Association of American Railroads on May 10, 2012. The AAR represent large freight and passenger rail corporations, including Amtrak, Burlington Northern Santa Fe, CSX and Norfolk Southern. The group's victory -- which is actually a terrible loss for the men and women who actually do the work of moving goods and people by rail -- was getting the Federal Railroad Administration to agree to excuse the corporations from equipping thousands of miles of tracks with positive train control technology.

FRA defines PTC as "integrated command, control, communications, and information systems for controlling train movements with safety, security, precision, and efficiency." In plain language, positive train control can automatically or remote slow and stop trains at risk for colliding or derailing.

Rules adopted in 2008 had required railroads to install PTC on all trains and tracks beginning no later than 2015. Despite promising to abide by those regulations, AAR members have worked overtime to take the teeth out of PTC requirements, even prompting Republican members of Congress to sponsor legislation to delay the launch date for PTC.

Here is the gist of the regulatory change announced by Secretary of Transportation Ray LaHood:

Railroads will no longer have to conduct risk analyses to obtain approval to not install PTC or take other costly risk mitigation measures on an estimated 10,000 miles of track that will not carry passenger trains or poison inhalation hazard (PIH) commodities after December 2015. Railroads are expected to save approximately $335 million over the first five years, and up to $775 million over 20 years, by utilizing safety measures other than PTC, where appropriate.

Saving money is paramount for railroads even though corporations are reaping all-time record quarterly and annual profits. The same day FRA updated its PTC regulation by making it less protective of train crew members, Norfolk Southern informed investors that it took in more than $11 billion in revenues during the 2011 fiscal year. NS had earlier posted a net profit of $1.9 billion for that 12-month period.

Projected cost savings for waiving PTC installation requirements for tracks that only engineers, conductors, carmen, trackmen and other rail employees will travel are $775 milion for the entire freight railroad industry over 20 years. In other words, about 40 percent of one year's worth of net income for the third-largest Class I railroad would cover all the expense of PTC for every mile of track that will now go without the lifesaving technology.

And make no mistake, positive train control can and will save lives. The National Transportation Safety Board reported in April 2012 that a fatal collision involving a BNSF train could have been prevented by PTC.

My railroad injury and wrongful death attorney colleagues and I have written often about rail corporatios valuing profits over the safety and lives of employees. The equation is simple for railroad executives and harmful for workers: Lobbying to reduce regulation plus going to court to fight claims for on-the-job injuries and deaths plus paying out on FELA and other claims equals less than paying for accident prevention and workplace protection. A particularly egregious example of this has played out for decades in Syracuse, New York (NY), where CSX has refused to pay to change the height of a bridge over a major highway while also settling lawsuit after lawsuit related to crashes caused by the low-clearance overpass.

That math undoubtedly works for railroads, but it's a killer for railroaders.

EJL

About the Editors: The Shapiro, Lewis & Appleton personal injury law firm, which has offices in Virginia (VA) and North Carolina (NC), edits the injury law blogs Virginia Beach Injuryboard, Norfolk Injuryboard and Northeast North Carolina Injuryboard as pro bono services.

Originally posted at InjuryBoard by Richard N. (Rick) Shapiro

An Often Forgotten Group of Plaintiffs

Jim Lewis — Tue, 17 Apr 2012 11:25:06 GMT

On April 3, 2012, a man died while in police custody in Norfolk, Virginia (VA). The details of the story remain somewhat unclear, but it appears that police officers restrained and pepper-sprayed a combative and suicidal man. The man lost consciousness while being transported to a hospital for medical attention, and later died after arriving at Bon Secours DePaul Medical Center. While the news report does not indicate that any police misconduct was at issue does make you think about a class of potential victims of personal injury that are often overlooked: individuals who are injured while in police custody or detention.

When a personal injury occurs outside the context of criminal law and procedure, we take it for granted that the injured victim can seek recovery in a relatively straight-forward fashion. But once police officers get involved, the rules start to operate a little bit differently, sometimes even if the detained individual didn’t even engage in criminal conduct. Even though personal injury suits against police officers or prisons can be quite a bit thornier than a normal personal injury claim, these victims still have rights and an interest in recovery if there was negligent conduct.

Aside from potential constitutional civil rights claims that victims of police abuse might have at their disposal, these injured parties might also be able to bring a normal personal injury claim on the basis of negligence. The same negligence laws will apply to the case, but they will be interpreted in the context of reasonable police action. In other words, the plaintiff will still have to prove that the police officer owed a duty of care to the plaintiff and that the officer breached that duty. Depending on the state or jurisdiction, there could also be sovereign immunity hurdles to jump as well. Behaviors that would be unacceptable from a normal citizen suddenly may be “reasonable” if carried out by a police officer while trying to uphold public safety.

Even if the analysis is different, the rights of injured plaintiffs still stand. An arrest or detention does not strip an individual of all protections. And as overlooked, and sometimes unsympathetic, as these victims can be, it is still important for to ensure that those rights are upheld.

Originally posted at InjuryBoard by Jim Lewis

How Many Times Do Teens Need to Hear 'Texting and Driving Don't Mix'?

Mark Favaloro — Sat, 14 Apr 2012 22:52:31 GMT

The topic of texting and the use of the cell phones while driving have made the headlines in all areas of the media, in effort to bring awareness to the public. Texting while driving is a national concern and our teenagers are the ones who are taking the most risks in doing so. Apparently teens are not seeing the real dangers of texting while driving and are approaching the problem too lightly. As technology advances, the need for making responsible decisions and taking the correct course of action increases.

The U.S. Department of Transportation and Consumer Reports are working together to bring awareness to the public and educating people about the results and potential hazards of texting while driving. Transportation Secretary Ray LaHood said, “Distracted driving has become a deadly epidemic on America’s roads, and teens are especially vulnerable because of their inexperience behind the wheel and, often, peer pressure,” Secretary LaHood said. “Behind the statistics are real families who have been devastated by these tragedies. We’re pleased to be working with Consumer Reports to raise awareness and help communities fight this problem.”

Many states are enforcing tougher laws and are alerting people as to the dangers of the distractions while driving. It seems teenagers are not taking the dangers of this behavior seriously. Comprehensive programs are being developed and implemented into educational curriculums.

Booker T Washington High School in Virginia hosted an event bringing awareness to the dangers of texting and driving where they set up simulation stations for students. It gave them the opportunity to experience what it is like to be distracted by texting and how fast an accident can take place. This was done by setting up a video that they had to watch while conducting text messages and riding a bike at the same time. These virtual experiences had such an effect on the young students, it lead them to pledge not to text and drive. Because there was a profound response from the students, more of these virtual reality type events should be offered to the public.

When we get behind the wheel of a car we are expected to do so in a responsible manner. It only takes a split second of being distracted to cause an accident or tragedy; no text or call is worth your life or someone else’s for that matter. Everyone has the right to be safe while on the road and driving.

Spreading the message about the increased dangers and educating people about how serious this situation really is can bring about change.

Focusing on our teenager is imperative; talking about the dangers of texting, restructuring our educational programs for drivers, involving law enforcement, and banning the use of cell phones while driving will make a positive difference.

April is National Distracted Driving Month, visit EnDD.org for more information. Also visit 60forSafety.org for more resources and to find out how you can get involved.

Originally posted at InjuryBoard by Mark Favaloro

When Does Uninsured Motorist Coverage Kick in Under Virginia Car Insurance Policies?

Richard N. (Rick) Shapiro — Thu, 12 Apr 2012 10:40:00 GMT

The seemingly obvious answer to the question posed in the title would be "Uninsured motorist coverage pays when the person who caused a car accident and injuries or death can't." The reason an at-fault -- and, therefore, liable -- driver might not be able to pay for property damage or costs related to recovering from physical, emotional and financial losses following a crash include not having automobile insurance, having too little coverage (i.e., being underinsured), and losing a lawsuit in which a large monetary award is made through mediation, settlement or civil court verdict.

In Virginia (VA), every driver who purchases insurance is required to carry uninsured motorist (UM or UIM) coverage. People are also allowed to drive without carrying any insurance at all if the pay an annual $500 fee to the state. UIM fees collected through the Department of Motor Vehicles go into a fund that helps insurance companies pay uninsured motorist claims to policy holders.

UM/UIM coverage is supposed to provide a safety net when underinsured or uninsured drivers harm others. Sometimes, at-fault drivers with too little or no insurance simply cannot afford to pay premiums. Many times, however, the people are negligent and irresponsible. Their inability to purchase affordable insurance results from a history of convictions for driving under the influence of alcohol or drugs or acting recklessly behind the wheel.

In a perfect justice system -- and certainly what Virginia lawmakers intended when setting up the uninsured motorist system -- UM or UIM payments would be automatic to traffic accident victims who could not collect damages and court awards from the people who harmed them. The payment does come through the victim's own policy, but for legal intents and purposes, it is made on behalf of the underinsured or uninsured driver.

Two related cases currently working their way through state and federal courts in Richmond prove that Virginians operate in a legal system that often delivers far less than perfect justice. The fundamental problem is that car insurance companies often sue in civil courts over when and if they must make UM or UIM payments to personal injury victims.

Both suits stem from a left-turn wreck in which the woman behind the wheel of the struck car suffered a head injury. The at-fault driver admitted that she caused the accident but contested the victim's injury claim. A circuit court entered a $4 million award for the plaintiff, and the defendant later filed bankruptcy. The defendant had carried only $300,000 in injury coverage and could not pay the rest of the judgment.

Unable to collect from the underinsured at-fault driver or the woman's insurance company, the injured plaintiff sought compensation through the UIM provision of her own insurance policy. Her insurer argued it was not required to pay the UIM claim, and the Supreme Court of Virginia is scheduled to hear the insurance company's argument in April 2012.

A federal suit brought by the injured woman against her insurer for breach of contract has been suspended pending the ruling of the state's high court.

My own opinion, as a personal injury attorney who has helped hundreds of crash victims deal with insurance companies since the mid-1980s, is that the whole situation is a mess. I know all too well that insurers will try just about any tactic to avoid paying legitimate claims, and flat out refusing to honor a policy's UIM provision is a tactic insurance companies resort to far too often.

While I can't predict how the state and federal judges will rule on the cases in Richmond, I'm rooting for the injured woman. At the same time, I know that the series of suits stemming from the original accident illustrate the need for all plaintiffs to hire a lawyer who is willing and able to fight for them for years when necessary.

EJL

Originally posted at InjuryBoard by Richard N. (Rick) Shapiro

Abuse Found in Privately Run Facilities for Mentally Disabled in Virginia

Mark Favaloro — Mon, 09 Apr 2012 22:16:45 GMT

State-run trainng centers for mentally disabled aduts in Virginia (VA) have long come under fire for incidents of patient abuse and neglect. Now, data collected by the state's Adult Protective Services agency show that as many as 1,200 cases of neglect and abuse were reported for residents of privately operated long-term mental health care facilities during 2011.

Those fidings were filed by advocates for keeping state training centers operating past a 2020 shuttering negotiated between federal and Virginia health care regulators. Under that plan, treatment for mentally disabled adults would be almost completely privatized in the commonwealth. A federal judge is considering the agreement and is expected to rule on its legality by May 2012.

The independent Virginia Office for Protection and Advocacy also filed a brief with the federal court that highlighted problems at privately run training centers.

Abuse and neglect of residents of nursing homes or in-patient treatment facilities has been a problem in Virginia and beyond. When someone’s life is entrusted to places like these it is paramount that they be treated with care and respect. While many long-term care facilities are remain underfunded and understaffed, those difficulties do not excuse providing substandard services.

If a loved one has suffered from neglect or abuse while in a nursing home, group home or in-patent treatment facility, please contact a Virginia nursing home attorney. And to remain aware of possible nursing home neglect, please read this article.

Originally posted at InjuryBoard by Mark Favaloro

DePuy Sold Hip Implants to Clean Out Inventory

Emily Mapp Brannon — Sun, 08 Apr 2012 07:57:27 GMT

A New York Times investigation revealed that that parent company Johnson & Johnson chose to sell defective DePuy ASR hip implants even after the U.S. Food and Drug Administration raised concerns about the device in 2009. The FDA initially approved the device in 2005 without requiring safety data on use of the metal-on-metal implants in humans.

Two years later, the FDA refused to continue to approve the device after studies showed the hip implant failed prematurely in a high percentage of patients. Many patients needed to have the DePuy devices removed and replaced.

It took a full year after the FDA warned Johnson & Johnson about the dangers associated with the device for the product to be pulled from the market, and an estimated 93,000 patients around the world received the defective artificial hips. All DePuy ASR hip implants have since been recalled.

This irresponsibility is shocking. Johnson & Johnson knowingly sold a defective, dangerous device even after the FDA warned the company about problems. As consumers, we expect the products we use to be tested for our safety. Knowing that the DePuy hip implants were never even tested on humans before being placed on the market makes it even worse.

Whether or not you’ve had problems with your DePuy hip implant, consult with an attorney as soon as possible. You may be eligible for compensation. Our Norfolk, Virginia (VA), medical malpractice attorneys have the expertise and experience necessary to handle your case.

Originally posted at InjuryBoard by Emily Mapp Brannon

Railroad Pedestrian Death by Norfolk Southern Train in Elmira, New York

Richard N. (Rick) Shapiro — Mon, 02 Apr 2012 22:52:33 GMT

Residents of Elmira, New York (NY), claim there is no safe place to cross train tracks near Southside High School. Perhaps illustrating this more tragically than anyone wanted, a man has been struck and killed by a Norfolk Southern train at South Main and West Miller streets. The fatal crash has not stopped high school kids from walking home along those very same dangerous tracks.

As a Virginia (VA) railroad accident attorney, I know it’s the responsibility of the railroad to maintain the tracks and keep them safe. Fencing off trestles and railways in areas with high foot trafic can deter people from walking into the paths of oncoming trains. In fact, the Federal Highway Administration estimates that gates prevent more than 8 times as many grade crossing deaths as stop signs.

Rail companies call pedestrian deaths and injuries on railroad tracks “trespassing incidents.” I think the family of the man killed in Elmira would call it something different.

My colleagues and I have handled rail injury cases in nearly every eastern U.S. state. We've also written two in-depth, special reports on FELA rights for railroad workers and tricks employed by railroad claim agents. If you or a loved one has been the victim of an accident on railroad tracks or at a crossing, take the time to read our reports.

Originally posted at InjuryBoard by Richard N. (Rick) Shapiro

Despite Fines Pharmaceutical Companies Continue to Harm and Defraud Patients(3)

Mark Favaloro — Mon, 02 Apr 2012 22:34:29 GMT

Multinational pharmaceutical companies seem too willing to flout laws and regualtions prohibitting the promotion of drugs for unapproved purposes, the withhoding of rebates to government health prgrams and pthe payment of kickbacks to doctors for prescribing brand name memdications when doing so allows the companies to increase market sare and profits. They engage in these illegal and unsafe practices with little regard for patients' health.

The revenues drugmakers generate allow them to easily pay the fines when caught. As a Virginia (VA) medical malpractice attorney who helps patients harmed by dangerous drug cases I know that sometimes even your doctor or insurance company can be fooled by a drug company. This was the case when Kaiser Health Insurance officials claimed they were intentionally misled by Pfizer representatives into believing that bipolar disorder and migraines could be treated effectively with Neurontin (gabaentin).

The bottom line is that drugmakers have a lot of money and aren’t afraid to go to court to defend themselves. If you have been hurt by a prescription medication, you need to arm yourself with knowledge. You can start by reading my law firm's free dangerous drug report.

Originally posted at InjuryBoard by Mark Favaloro

Despite Fines Pharmaceutical Companies Continue to Harm and Defraud Patients(2)

Mark Favaloro — Mon, 02 Apr 2012 22:34:00 GMT

Originally posted at InjuryBoard by Mark Favaloro

Despite Fines Pharmaceutical Companies Continue to Harm and Defraud Patients

Mark Favaloro — Mon, 02 Apr 2012 22:33:31 GMT

Originally posted at InjuryBoard by Mark Favaloro