Texas Injury Lawyer Blog

The autopsy plays a critical role in proving causation in vehicular crashworthiness cases which result in the death of a passenger. Death cases almost always involve substantial impacts that necessarily involve sudden acceleration/deceleration type forces. These forces are virtually unavoidable and are often fatal. Fatal deceleration injuries might include a transected aorta or a brain stem shear. Deceleration type injuries must be ruled out.

The goal of the crashworthiness case is to prove that the faulty design of the vehicle subjected the occupant in an otherwise survivable crash to lethal trauma. It is difficult to accomplish this goal without an autopsy or at the very least an extensive medical workup.

The Food and Drug Administration(FDA) has determined that a group of anti-depressants used to treat depression, anxiety and mood disorders, known as Selective Serotonin Reuptake Inhibitors, or SSRIs, can cause serious birth defects or even death when taken by certain pregnant women. The group of anti-depressants that causes birth defects includes Celexa, Fluvoxamine, Lexapro, Paxil, Prozac, Symbyax and Zoloft.

The most common birth defect is Neonatal Persistent Pulmonary Hypertension. Studies have repeatedly shown that pregnant women who took these SSRIs after the 20th week of pregnancy were six times more likely to have a baby with Neonatal Persistent Pulmonary Hypertension.

Other less likely birth defects caused by SSRIs include atrial septal defects(ASD), ventricular sepatal defects(VSD), tetralogy of fallot, heart valve defects, hypoplastic left heart syndrome(HLHS), cardiomyopathy, and patent ductus arteriosus(PDA).

Expectant mothers who took these SSRIs and delivered babies with these birth defects would be well advised to seek legal counsel.

The Texas Supreme Court held in Carnation Co. V Wong, 516 S.W.2d 116 (Tex. 1974), that persons whose negligence did not cause the auto accident should not have their failure to wear an available seatbelt admitted against them to reduce their damages. This law was well established over a decade later when the Texas Legislature passed Texas Transportation Code section 545 requiring the use of seatbelts by certain occupants of motor vehicles. At the time of the passage of Section 545 legislators, fearing that insurance companies would use the failure of an injured motorist to wear a required seatbelt as an excuse not to pay legitimate claims, added language to the legislation prohibiting the admission of evidence regarding the non-use of a seatbelt in injury cases.

Fast forward almost 20 years to the 2003 legislative session. In 2003 the insurance lobby dominated (some say owned) the Texas Legislature. The Legislature passed House Bill 4 including a provision repealing the sections 545.412(d) and 545.413(g) which prohibited the admission of evidence of the use or non-use of a seat belt. The insurance lobby hoped to use the failure of an injured plaintiff to wear a seatbelt in a contributory negligence type argument to reduce damages. However, Texas law has gone full circle and returned to the mandates of Carnation Co. v. Wong. While the failure to wear a seatbelt may arguable be admissible for some purposes, such as in certain products liability crashworthiness cases, it is inadmissible under Carnation Co. v. Wong to reduce or show a failure to mitigate the Plaintiff's damages.

Governor Rick Perry signed into law his Omnibus Tort Reform Bill best known for its anti-consumer Loser Pay provisions.

The version of HB 274 that was signed into law is substantially different from the original bill. At the outset the most notable of the Loser Pay provisions were that Loser Pay did not apply unless invoked by the defendant and that if a settlement offer was rejected by a plaintiff who thereafter received a judgment for substantially less than the settlement offer then the plaintiff would be responsible, without limit, for the defendant's attorney's fees and expenses incurred after the rejection of the settlement offer. The latter provision could potentially create a situation where the plaintiff could file a meritoriously claim, prevail on the claim, and obtain a verdict against the defendant, but because the verdict was in an amount less than the settlement offer and the defendant's attorney's fees and expenses incurred after the settlement offer exceeded the amount of the verdict plaintiff could end up prevailing at trial yet owing the defendant money. No one but an insurance company would think that this result was fair or just. This provision was removed from the version of HB 274 which was signed into law.

Loser Pay must still be invoked by the defendant. This allows defendants to use Loser Pay as a strategic tool. Defendants can invoke Loser Pay only in those cases where they have a chance of winning and refuse to invoke Loser Pay in those cases where they have asserted frivolous defenses and are using litigation as a means of spending the victim into submission. HB 274 also increases the amount that a defendant can recover in attorney's fees and expenses up to the total amount of the plaintiff's recovery. It is difficult to predict the effect that HB 274 will have in practice. Because the Loser Pay provisions of the Civil Practices and Remedies Code Section 42 apply to both plaintiff and defendant once invoked by the defendant it is unlikely that defendants will be willing to open that can of worms at the courthouse.

For more information contact a Tyler Injury Attorney.

Recent legislation proposed in the Texas Legislature would allow Texas college students to carry concealed handguns. Arming every Texas college student is probably not the best way to address the concern for the safety of our students on college campuses. The decision as to when to use a deadly weapon in self defense or the defense of others requires extraordinary judgment. Some have argued that if an 18-year-old is old enough to join the military, fire automatic weapons in combat, and die for their country then they are old enough to carry a handgun while going to class. This is false logic. The military provides specialized weapons training and soldiers use those weapons pursuant to direct orders and a rigorous chain of command. While many 18-year-olds are extremely competent with firearms the judgment regarding when to use a firearm is something that is more likely to come with age and experience.

This is not to say that the notion of having numerous concealed weapons on campus is a bad idea. Any adult working on campus should be authorized, and even encouraged, including by the payment of a stipend, to obtain a concealed handgun permit and to carry a concealed handgun on campus. Offering tuition discounts to graduate students or other older students who agree to complete a concealed handgun course and carry a concealed weapon while on campus is another viable option. However, allowing every 18-year-old college student the option of carrying a weapon on campus has the potential for obvious problems. Good judgment comes from experience. Experience comes from bad judgment. We don't want our college students learning judgment with handguns on our college campuses.

For more information contact a Tyler Injury Attorney today.

Texans who have been injured or have a wrongful death claim for the loss of a loved one arising out of a defective product should be aware of the Texas products liability statute of repose. Section 16.012 of the Texas Civil Practice and Remedies Code provides that a products liability action must be brought within 15 years from the date of the original sale by the defendant.

It is important to note that the event which starts the 15 year clock ticking is the sale by the defendant. The primary defendant in a Texas products liability action is usually the manufacturer. Keep in mind that the purchase by a consumer may take place a considerable time after the statute of repose starts to run. For example, consider the situation in which a truck is manufactured in 1993, sold to a dealer in January of 1994, sold to a consumer in January of 1995, and driven for 15 years by the original consumer who rolls the truck over in January of 2010 and is killed when the roof pillars allow the roof to crush. Because the applicable statute of repose runs from the date of the sale by the defendant (January of 1994), the Texas statute of repose on the wrongful death case against the manufacturer starts to run in January of 1994 and expires in January of 2009. While the roof crush case and the resulting wrongful death claim would normally be subject to a two-year statute of limitations from the date of the accident the claim would be barred by the applicable statute of repose before the cause of action accrued.

In this scenario there is nothing the wrongful death claimants could have done to avoid the statute of repose. However, being aware of the statute of repose becomes critical in situations where the statute of repose expires during the applicable statute of limitations. Using the above scenario assume that the truck was originally sold by the manufacturer to the dealer in January of 1996. Under this scenario, the two-year statute of limitations on the wrongful death and survivor claims arising out of the roof crush case which occurred in January of 2010 would not expire until January of 2012. However, the statute of repose would bar the claims when it expired in January of 2011, one full year before the 2 year statute of limitations expired.

Texas victims of a defective product should calculate not only the applicable statute of limitations but also the applicable statute of repose.

For more information contact a Tyler Defective Product Lawyer today.

Everybody has heard the media version of the McDonalds hot coffee case but nobody seems to have heard the truth. What the media never mentions are the facts that led a jury of conservative people to the conclusion that McDonalds not only caused Stella Liebeck's injuries but also desperately needed to be punished. The pertinent, and usually ignored, facts are that McDonalds maintains their coffee at 180 degrees which is about the temperature of the radiator on an automobile on a hot summer day. Hot coffee at 180 degrees will cause third degree burns in a matter of seconds. Sure, poor Stella Liebeck spilled her coffee in her lap and that's her fault. Her punishment should have been stained sweat pants. However, what she received was almost unimaginable. She received third degree burns to her thighs and genitals. Her burns were so severe that she was hospitalized in a burn ward where her wounds were debrided. Burns are debrided by taking a tool somewhat akin to a cheese grater and scraping away the dead flesh until you hit tissue that bleeds. Over the next year Liebeck underwent plastic surgery and skin grafts on her legs and genitals. Still, all Liebeck wanted was $20,000 to help pay for her medical bills. McDonalds told her to get lost.

McDonalds claimed to be unaware of the danger presented by radiator hot coffee and swore that they had never had another complaint or injury as a result of the temperature of their coffee. Liebeck's counsel ultimately was able to document that McDonalds had received over 700 complaints of injuries caused by the temperature of their coffee, including several as serious as Liebeck's, but had chosen to ignore the complaints because of the profitability of their coffee. The jury awarded Liebeck only $160,000 in actual damages, a rather modest sum considering the severe nature of her injuries. The same jury was so offended by McDonalds' corporate lack of concern for their customers' injuries and their calculated dishonesty that they assessed $2,700,000 in punitive damages against McDonald. The judge reduced the award to $640,000 almost immediately and the matter was settled while on appeal for considerably less than the amount awarded by the judge.

If the true facts of this case still sound frivolous to you then maybe you should drain your radiator onto your lap and rethink the issue.

For more information contact a Tyler Injury Lawyer today.