Missouri Injury Lawyers Blog

American Association for Justice (AAJ) recently submitted comments to the Centers for Medicare and Medicaid Services (CMS) calling for more transparency of payments made to doctors and hospitals by drug and device manufacturers.

Financial relationships between drug and device manufacturers may result in a conflict of interest, as well as a negative impact on the safety of patients.

AAJ President Gary M. Paul stated: "We need to eliminate patients' unnecessary exposure to potentially dangerous drugs and devices. Transparency will allow patients to determine whether their physicians have any conflicts of interest and empower them to make an informed decision regarding the drugs or devices they are prescribed."

Learn more from AAJ's full release.

When a motor vehicle collides with a pedestrian, there is a high risk of serious personal injury or death. Pedestrian/motor vehicle accidents are a serious problem in the United States.

Data from the most recent National Highway Traffic Safety Administration information indicates that in 2009, 4032 pedestrians were killed and an estimated 59,000 were injured in traffic crashes in the United States. On average, a pedestrian is killed every two hours and injured every nine minutes in traffic crashes.

Older pedestrians (age 65+) accounted for 19 percent of all pedestrian fatalities and an estimated 8 percent of all pedestrians injured in 2009. In that same year, one-fifth of all children between the ages of 5 and 9 who were killed in traffic crashes were pedestrians. Children age 15 and younger accounted for 7 percent of the pedestrian fatalities and 25 percent of all pedestrians injured in traffic crashes. Forty percent of all young (under 16) pedestrian fatalities occurred between 3 and 7 p.m.
Many factors may contribute to pedestrian accidents. Negligence is one of the most common factors. Motorists have a responsibility to adhere to the laws of the road and drive in a safe and observant manner at all times. Some common negligent practices by motorists include:

• Inattentive or distracted drivers
• Driver's failure to observe posted speed limits
• Driver's failure to yield the right of way to pedestrians at marked cross walks
• Driver's disregard for traffic control devices

As our thoughts turn to spring and more people are walking, running and cycling, the partners and staff at Tatlow, Gump, Faiella & Wheelan, LLC, would like to remind both drivers and pedestrians of the following safety measures:

• Drivers are required to yield the right-of-way to pedestrians crossing streets in marked or unmarked crosswalks in most situations. They need to be especially careful at intersections where the failure to yield right-of-way often occurs when drivers are turning onto another street and a pedestrian is in their path.
• When possible, cross the street at a designated crosswalk. Always stop and look left, right and left again before crossing. If a parked vehicle is blocking the view of the street, stop at the edge line of the vehicle and look around it before entering the street.
• Increase visibility at night by carrying a flashlight when walking and by wearing retro-reflective clothing that helps to highlight body movements.
• It is much safer to walk on a sidewalk, but if you must walk in the street, walk facing traffic.

Continue reading "Pedestrian Accidents" »

Tatlow, Gump, Faiella and Wheelan LLC of Moberly and Co-Counsel Branson L. Wood III, of Hannibal recovered $3,000,000 from Savers Property and Casualty Insurance Company after it wrongly denied the claims against its insureds. The bad faith claim against Savers Property and Casualty Insurance Company originated from an incident in the City of Perry, Ralls County, Missouri when Timothy Epperson was killed as a result of a municipal sewer line trench cave in on February 19, 2008. Timothy Epperson was survived by his wife, three minor children and his parents. The Epperson plaintiffs filed a wrongful death action against Donald Huff as the City Superintendent and Executive Officer of the City of Perry Missouri. Although Defendant Huff's insurance company issued liability insurance coverage under a general liability insurance policy in the amount of $2,000,000 dollars, Savers Insurance failed and refused to defend Huff against the claim for wrongful death of Timothy Epperson.

On March 23, 2010 the Epperson plaintiffs obtained a judgment against Huff in the sum of $6,277,700.

Donald Huff joined the Epperson plaintiffs in asserting claims against the insurance company under several counts including equitable garnishment, breach of contract, vexatious refusal to pay, and bad faith. Summary Judgment was won by the plaintiffs at the trial court and the insurance company appealed. However, before the issue was decided by the Appellate Court, the party reached an agreement to settle all issues for one and a half times policy limits or the total of $3,000,000. Epperson-Bridgeman, et. al. v. Savers Property and Casualty Ins. Co., E.D. 96074.

Many people believe young children are quite resilient after they are seriously hurt. The opposite may be true with traumatic brain injuries.

Two Australian studies looked at the impact of traumatic brain injury in children as young as 2 years. These studies found that TBI's affected cognitive function, IQ and behavior for some time. However, the researchers also discovered that recovery from traumatic brain injury can continue for years after the initial injury.

"Many people think that the soft skull of a baby may give them some advantage because if they fall they are not likely to sustain a skull fracture. Also, because a baby's brain is growing so quickly, it seems like the brain may be able to fix an injury. In reality, the soft skull and growing brain of a baby put them at a greater risk of future problems," said Louise Crowe, a postdoctoral research officer at the Murdoch Childrens Research Institute in Melbourne (the lead author of one of the studies).

Crowe adds, "Children with significant head injuries do recover, but they are generally slower to learn concepts, and some high-level skills are often too difficult for them."
Results from both studies are scheduled to appear in the February issue of Pediatrics.

Most of these traumatic brain injuries do not prove to be fatal, but about one-third of children who survive the TBI will have lasting damage, report the researchers.

One of the studies shows that children who had moderate-to-severe TBIs scored lower on IQ tests by about seven to 10 points. Mild traumatic brain injuries didn't seem to significantly affect IQ. Mild and moderate-to-severe TBIs were also associated with an increased risk of behavior problems.

Additionally, it was noted that a child's home environment can positively influence recovery if the child lives in a stable, caring home.

Read more here.

Trial attorneys Chris Faiella and Sidney Wheelan, of Tatlow, Gump, Faiella & Wheelan, LLC of Moberly, Missouri, along with co-counsel, Strong-Garner-Bauer, P.C. of Springfield, Missouri recovered 2.5 times policy limits for in a bad faith claim against Sentry Select Insurance Company.

The bad faith claim against Sentry Select Insurance Company originated from a collision on U.S. Hwy 54 in Miller County, Missouri, in November of 2004, when a motor grader operated by James Duckworth was rear-ended by a semi-tractor trailer unit. The semi-tractor was owned by James Hosmer and operated by one of his employees, but under a long term lease to another carrier, Cands, Inc.

Because Mr. Duckworth received severe and debilitating injuries as a result of the negligence of the truck driver, the Duckworths initiated a law suit to determine liability and damages. After protracted litigation, the Duckworths eventually reached an agreement to settle their claims against the carrier, Cands, Inc., for the insurance policy limits of $1 million. As part of the settlement, Sentry Select Insurance Co., insisted on obtaining a release for itself, but failed to obtain a release for its other insureds. Sentry failed to advise the owner of the truck, who was also the employer of the truck driver, that it was not protecting his financial interests and was not getting a legal release for his potential liability for the collision.

After months of depositions, summary judgment rulings, and pre-trial motions, the parties reached an agreement to settle the claims of bad faith against the insurance company just one week before trial was scheduled to begin in Federal Court, Western District, in Jefferson City for an additional $1.4 million. The case is Sentry Select Insurance Co. vs. Hosmer, et al, Case No. 2:08-CV-04254-NKL.

Changing technology was the focus of another case recently decided by the Missouri Court of Appeals Western District. The case, arising from a fatal car accident in Mexico, Missouri, is State v. Clampitt, WD73943. At issue, was text messages the accused sent on the day of the collision and for approximately one month following the event. The trial judge, the Hon. Gary Ravens of Chariton County, suppressed the evidence, writing that "the state was eavesdropping to see if the defendant would make an admission." And the Appellate Court agreed, holding that messages sent by cell phone deserve the same long-standing Fourth Amendment privacy protections afforded to letters and phone calls.

Continue reading "Missouri Court of Appeals finds that a prosecutor could not access a month's worth of text messages sent by a suspect in a fatal car accident" »

These are the car accidents we don't think about. Non-traffic related vehicle incidents are incidents that occur in places other than a public highway, street, or road. These incidents occur in driveways, parking lots, or off-road locations and may involve bicyclists, pedestrians, non-moving vehicles, or vehicles backing up.

Vehicles are often in close proximity to children's play areas. Children can be injured or killed in "backover" or "frontover" incidents. Parents, grandparents, caregivers and drivers should all do their part to make sure that children do not share space with vehicles. A quick walk around the car before you get in could save the life of a child.

Each year, hundreds of child fatalities occur due to non-traffic related vehicle incidents. Additionally, over a hundred thousand children are injured in such accidents annually.

Tips for Avoiding Backover and Frontover Incidents:

• Walk all around your parked vehicle to check for children, or those things that could attract a child such as a pet or toys. Also check under or behind your vehicle prior to getting in and starting the engine.
• Physically accompany small children when they get in or out of a vehicle.
• Identify and utilize safe play areas for children - away from parked or moving cars. Block driveways to prevent vehicles entering and exiting.
• Designate a safe waiting spot for children to wait when nearby vehicles are about to move. This should be a spot in which a driver can clearly see them.
• Firmly hold the hand of a child when in the presence of moving vehicles, and also in driveways, parking lots, and sidewalks.

Tatlow, Gump, Faiella and Wheelan, LLC, a plaintiff's personal injury and insurance litigation firm of Moberly, Missouri, has again been recognized by Missouri Lawyers Media for obtaining two of the Top Verdicts and Settlements of 2011.

Both large settlements reported by Missouri Lawyers Media in their annual list of top verdicts and settlements were the result of bad faith claims against insurance companies for wrongfully denying insurance claims or failing to settle claims in good faith. The first case, trial attorneys Chris Faiella and Sidney Wheelan, of Tatlow, Gump, Faiella & Wheelan, LLC of Moberly, Missouri, along with co-counsel, Strong-Garner-Bauer, P.C. of Springfield, Missouri recovered $1.4 million in a bad faith claim against Sentry Select Insurance Company.

The second case, Tatlow, Gump, Faiella and Wheelan LLC and Co-Counsel Branson L. Wood III, of Hannibal recovered $3,000,000 from Savers Property and Casualty Insurance Company after it improperly denied the claims against its insured.
Missouri Lawyers Media annually reports the Top Verdicts and Settlements in the state. The listing covers cases reported by lawyers or by news staff during regular courthouse coverage through mid-December, 2011. The listings do not report the cases that are settled pursuant to confidentiality agreements. Plaintiff's verdicts are ranked by the size of the award. To qualify, cases must have concluded in state or federal courts in Missouri in 2011.

The U.S. Consumer Product Safety Commission and Health Canada, in cooperation with BSH Home Appliances Corporation, announce a voluntary recall of Tassimo Single-Cup Brewers. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product.

About 835,000 units in the United States and an additional 900,000 in Canada are affected by this recall.

The plastic disc or T Disc, which holds the coffee or tea can burst and spray hot liquid and coffee grounds or tea leaves onto consumers and onto bystanders, posing a burn hazard.

There have been 140 reports of incidents with the brewers spraying hot liquid, coffee grounds or tea leaves onto consumers, including 37 reports of second-degree burn injuries. In one incident, a 10-year-old girl from Minnesota received second-degree burns to her face and neck and had to be hospitalized.

Details: This recall involves Tassimo brewers with the Bosch brand name and Tassimo Professional brewers. The brewers use plastic T Discs that are filled with coffee or tea to brew hot drinks. "BOSCH" and "TASSIMO" are printed on the front of the brewers. "TASSIMO PROFESSIONAL" is printed on the front of the professional model. The Bosch-brand brewers were sold in black, white, anthracite, gray, silver, red, titanium and white/gray colors. The Tassimo Professional brewers were only sold in black.

Read more, and get further details involving this recall here.

As technology advances, the law and its application to real life events are constantly evolving. Last week, the U.S. Supreme Court unanimously held that the Government's attachment of the GPS device to the vehicle, and its use of that device to monitor the vehicle's movements, constituted a search under the Fourth Amendment. The case, United States v. Jones, is an appeal by Antoine Jones, who was convicted of conspiracy to distribute cocaine after police installed a GPS device on his vehicle.

The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fourth Amendment is implicated when there is a violation of a suspect's reasonable expectation of privacy. In this case, the Government's physical intrusion by installing the GPS device for the purpose of obtaining information without a valid search warrant violated the defendant's rights under the Fourth Amendment.

Continue reading "The U.S. Supreme Court Rules That Police Officers Must Obtain A Search Warrant Before Attaching A GPS Device to a Suspect's Vehicle" »

Local Attorney, Sidney Wheelan, of Tatlow, Gump, Faiella & Wheelan, LLC, in Moberly, addressed the Paris Chapter of the Future Business Leaders of America (FBLA) on Thursday, February 2, 2011. Ms. Wheelan spoke to the group about their future goals and the importance of thinking long term. Ms. Wheelan was privileged to attend the National Leadership Conference with the Paris FBLA Officers in Little Rock, Arkansas, last fall and is looking forward to supporting the students at District competitions later this month.

Damages received as a result of a lawsuit are made to compensate victims for injury. Furthermore, these damages are designed to make the victim whole again, not as a form of enrichment that should be taxed as income. This is true regardless of whether the damages were the result of personal injuries arising from a tort or some other form of legal wrong.

The earlier IRS rule was that only those damages recovered for a "tort or tort type rights" were excluded from gross income for tax purposes. Treating damages that arise from tort-type rights differently than other damages resulted in inequitable treatment against victims of discrimination and those that live in no-fault states.
The new regulations deleted the requirement that to qualify for exclusion from gross income, damages received from a legal suit, action, or settlement agreement must be based upon "tort or tort type rights." The proposed regulations provided, instead, that the section 104(a)(2) exclusion may apply to damages recovered for a personal physical injury or physical sickness under a statute that does not provide for a broad range of remedies, and that the injury need not be defined as a tort.
A full copy of the new rule can be found here.

The lawyers at Tatlow, Gump, Faiella & Wheelan, LLC are long time members of the American Association for Justice (AAJ) formerly known as the Association of Trial Lawyers of America (ATLA). The organization was established in 1946 to safeguard the rights of the injured, strengthen the civil justice system, promote injury prevention, and foster the disclosure of information critical to public health and safety. AAJ advocated for the proposed IRS rule change. TGFW is pleased that the IRS has removed the tort-type rights tests from the taxable determination of damages.