The Real Cause of the Litigation Crisis
THE REAL CAUSE OF THE LITIGATION CRISIS – INSURANCE COMPANIES
Susan Clarke was on her way to visit an elderly personal services client in Northern Virginia when she was struck from behind during rush hour, pushing her into the car in front of her. The cars were not extensively damaged, but her seat back did collapse in the collision.
Susan’s low back was sore, but she had a history of low back strains and did not think she was badly hurt. After several days of bed rest, hoping the back pain would resolve, she awoke in extreme pain. Her doctors eventually diagnosed a herniated disc. She treated conservatively and was significantly better within 8 months. She incurred about $4,500 in medical bills.
She tried to resolve the claim with State Farm without a lawyer. State Farm refused to even talk with her about settlement, claiming that the rear-end crash was her own fault and that her herniated disc was pre-existing condition.
NOVEL FEE ARRANGEMENT
Susan came to me for a consult. I evaluated her case as being worth $15-20,000 in settlement. I explained that it was too expensive for a lawyer to try such a case and that she should make another attempt to settle on her own. She asked State Farm to simply pay her medical bills. The insurance giant refused. Susan’s case is typical of modest injury claims.
Once or twice a year for the past decade or so, I have agreed to help people like Susan for no fee. Instead, the client agrees that when the case resolves, they will take a portion of the settlement and make a donation to Legal Aid, which provides civil legal help to the poor. Typically, the case is a small case that I would not normally take; liability is clear; but the damages are modest. The client gets appropriate recovery for a small injury; Legal Aid gets a modest donation; and I sleep well at night.
After State Farm refused to even discuss settlement with her, Susan came back to see me and I agreed to help her in exchange for a voluntary donation. In every Legal Aid case I have done before Susan’s case, the insurance company settled the case without trial once they knew a lawyer was involved and was serious.
Susan’s case did not follow the pattern. Indeed, State Farm went out of its way to increase the cost of the case and trial to try to punish Susan for taking it to trial.
THE EVIDENCE
Susan had a history of prior back problems, which was a blessing in a backhanded way, as she had an MRI that provided a snapshot of her back before the crash. We sent her prior MRI and a post-crash MRI to Dr. Charles Citrin for evaluation. Dr. Citrin is a neuroradiologist whose sole job is to interpret MRI and x-rays of the back. He often testifies for insurance companies and I expected that if he found causation, State Farm would resolve the case for its proper value. Dr. Citrin is conservative and states his mind, so it seemed clear that if he found causation, the insurance company would agree that the herniation was caused by the crash.
Dr. Citrin opined that it was not a close call – the comparison of the MRI clearly demonstrated that the herniation was caused by the crash. It simply did not exist in the earlier MRI. Despite the clear opinion of its own preferred doctor, State Farm offered less than $2,000 to settle the case (It cost Susan more than $2,000 simply to have Dr. Citrin take the second MRI and compare it to the older film).
JACKING UP THE COSTS
Even though my fee was a donation to Legal Aid, Susan still had to pay out of pocket costs, such as court reporter fees and expert costs. The insurance company went out of its way to make those costs as high as possible. Because State Farm claimed that the crash was Susan’s fault, I had to depose both the defendant and the driver in the lead car, who had subsequently moved to South Carolina. The costs of the depositions exceeded $1,000. State Farm denied that any of Susan’s medical bills were caused by the crash, so she had to designate Dr. Citrin to testify at trial and pay him to take a day off work to talk to the jury, which cost her over $6,000. State Farm hired another of its favorite doctors, Robert Gordon, to opine that Dr. Citrin misinterpreted the MRIs and that the earlier MRI was identical to the post crash MRI, so we had to depose Dr. Gordon at a cost of about $1,500.
During the deposition of Dr. Gordon, he revealed that insurance companies pay him over $200,000 a year for his testimony favoring them and have done so for more than two decades. In the past 5 years, he has testified live in court 66 times – 100% for the defense and 100% opining that the plaintiff was not hurt as claimed. State Farm aggressively resisted providing the documentation that would reveal precisely how much State Farm itself paid Dr. Gordon, although a 1099 from another case indicated that in 2009, State Farm itself paid him over $212,000. State Farm’s efforts to suppress the scope of Dr. Gordon’s entanglement with State Farm cost Susan hundreds of dollars in additional costs.
TRIAL TACTICS
By the time of trial, Susan had spent more than $10,000 in costs simply to counter the defenses that State Farm insisted it was going to present to the jury. A week before trial, State Farm raised its offer to $5,000 – and that was the most it ever offered.
In opening, State Farm’s lawyer told the jury that Dr. Gordon would refute the doctor “plaintiff’s counsel hand-picked for her” and would testify that she was not hurt at all in the cash. He also promised the jury that the Defendant would testify that Susan was following too close and hit the car in front of her before she was struck.
Although State Farm knew I was receiving no fee, it repeatedly insinuated that the case was manufactured by a “greedy plaintiff’s lawyer” because I sent Susan to Dr. Citrin for evaluation. The second time he did this, the Court allowed Susan to re-take the stand and explain to the jury the fee arrangement.
After forcing Susan to prove her medical bills; forcing Dr. Citrin to testify live; and requiring testimony of the South Carolina man in the lead car that the crash was caused by the Defendant, State Farm abandoned its threatened defense evidence and did not call Dr. Gordon to testify. It also abandoned any testimony by the Defendant that Susan hit the car in front of her before he struck Susan.
RESULT
The jury returned a verdict for the Plaintiff for $25,000, slightly more than I thought the case should have settled for, but certainly within the reasonable range of a proper amount to compensate Susan for her injuries. But it cost Susan almost $14,000 in costs to force State Farm to take responsibility. Although Susan did not pay my legal fees, I spent tens of thousands of dollars in time to prepare and try the case. Presumably, State Farm spent a similar sum. A Fairfax judge, clerk, bailiff, and other court personnel wasted two full days hearing the case and seven citizens were forced to take two days out of their lives as jurors to force the insurance company to take basic responsibility.
Susan has a pending a bill of costs and expenses s to try and recover some of the expenses she incurred because of the insurance company’s tactics. But, she will still have to pay most of the costs out of the verdict. She still plans on making the donation to Legal Aid, which will leave her with little net recovery. As a footnote, Dr. Citrin plans to donate $2,000 of his fee to several of his favorite charities, including St. Jude’s and Doctors without Borders.
State Farm is threatening to appeal the verdict.
WHY DO INSURANCE COMPANIES BEHAVE LIKE THIS?
Insurance companies make their money by taking in premiums and not paying claims. The simple truth is that the fewer claims they pay, the higher their profits. They know that if they make the process difficult, unpleasant and expensive, they will discourage people (and their lawyers) from pursuing legitimate claims. Susan, for example, simply could not have taken the case to trial if she had to pay a lawyer to pursue the case.
Beginning in the 1980s, the insurance industry appears to have embarked on a systematic campaign to vilify those seeking compensation for injury or loss and to make recovery of losses are difficult as possible.
Some industry leaders train adjusters to make low offers and if accepted, treat the claimant nicely, but if the claimant requests full compensation to “bring out the boxing gloves.” A training power point attributed to Allstate, for example displays an alligator with the caption "Sit and Wait." The slide advises that adjusters can discourage claimants by delaying settlements and stalling legal proceedings.
Insurance companies defend these tactics by claiming that if they paid claims such as Susan’s, premiums would go up. This is stupid-talk. In 2006, casualty insurers, of which Sate Farm is the largest, reported profits of $73 billion. This was an increase of 49 percent over 2005 profits. The industry raked in these historic profits in the wake of Hurricane Katrina. Of course, the insurance industry’s abuses of claimants in that disaster were a model of how not to treat customers. In 2008, State Farm itself amassed $5.463 billion in profits. These profit margins belie any legitimate reason to deny proper claims.
Until the public understands that the tort reform “movement” is in reality a slick marketing campaign designed to vilify people seeking legitimate compensation for injuries caused by others, the insurance industry will have the cover it needs to routinely delay, discourage and deny responsibility for paying proper claims.
Insurance companies are like bookies – you lay your money down and make a bet with them. They take your money and take your bet. If your side of the bet comes to pass, they are supposed to pay out. In Atlantic City, there are consequences when a crooked bookie does not pay his bets. It is time to hold the insurance industry to the same standards and any other bookie.
[Back to Top]
Slate.com: Why Don't More Women Sue Their Rapists?
http://www.slate.com/id/2254980/
By Clair Bushey
When the Supreme Court struck down a portion of the Violence Against Women Act 10 years ago this month, the justices made it clear they thought victims of sexual violence had the right to sue their attackers. They just didn't think federal court was the place to do it.
The rationale behind VAWA, which Congress passed in 1994, was simple enough: Rape, a crime committed mostly against women and girls, constituted a brutal violation of their civil rights. Lawsuits could help victims hold rapists accountable. In 1994, Christy Brzonkala, then a student at Virginia Tech, accused football players James Crawford and Antonio Morrison of raping her. She sued Morrison and the school under VAWA's new civil rights remedy. In 2000, in United States v. Morrison, the court said that Brzonkala's suit couldn't go forward because Congress had overstepped its constitutional authority by creating a federal remedy in the criminal-justice realm that usually falls to the states. "If the allegations here are true, no civilized system of justice could fail to provide [Brzonkala] a remedy," Chief Justice William Rehnquist wrote for the majority. "But under our federal system that remedy must be provided by the Commonwealth of Virginia, and not by the United States."
And yet a decade later, rape victims in most states have yet to recover the legal advantages they lost when VAWA's civil rights remedy was struck down. To be sure, the number of civil cases in state court alleging sexual assault has increased dramatically. Research by Ellen Bublick, a professor at the University of Arizona's law school, shows that state supreme courts heard more than 100 sexual violence suits between 2000 and 2005, compared with fewer than 10 between 1970 and 1975. That translates into hundreds or even thousands of cases in trial courts, most of which probably ended in settlement.
But most of these lawsuits go after third-party defendantsthe kind with assets. The woman plaintiff brings a negligence claim against a shopping mall guarded by apathetic rent-a-cops or a nursing home that doesn't screen for a criminal background when it hires. These kinds of defendants offer the possibility of a hefty judgment that can pay for a lawyer's work on the case. Without that, attorneys often turn down cases even if they're winners, said Jeff Dion, director of the National Crime Victim Bar Association. Though lawsuits against third-party defendants occasionally also name the rapist, "their responsibility is a far less frequent focus of inquiry," Bublick wrote. Dion said that for every case the National Crime Victim Bar Association's 300 lawyers take, "there's 10 they turn away." Peter Everett, a Virginia attorney who handles negligence cases against malls and hotels with inadequate security, said he turns down more than half the cases he's offered.
VAWA's civil remedy made it easier for women to find lawyers to take their cases against individual rapists because it encouraged courts to award attorney's fees to successful plaintiffs. The federal law also made it easier for women to sue by extending the statute of limitations to four years. (In most states, for cases like these, the time period is about two years.)
Victims need the weapon of a lawsuit because the criminal courts don't always serve their interests. A 2004 study of sex crimes in Philadelphia and Kansas City, Mo., found that only half of the cases that resulted in an arrest were prosecuted. When prosecutors who doubt a victim's story are unwilling to press criminal charges, a civil suit allows the victim a different measure of justice. Juries determine guilt using a lower burden of proof; instead of deciding whether a defendant is guilty "beyond a reasonable doubt," a plaintiff need only demonstrate that "a preponderance of the evidence" points to guilt, making it easier for victims to prevail. Victims don't send their rapists to prison by suing them, but the damages they can win are another form of punishment. Damages can also help replace a rape victim's lost income and pay for counseling. "The criminal case is about paying your debt to society," Dion says. "The civil case is about [perpetrators] paying their debt to the victim."
Along with its practical importance for victims, VAWA promised a more abstract kind of benefit that was lost when the Supreme Court struck down the relevant portion of the law. Introducing the legislation in 1990, then-Sen. Joe Biden pointed out that more than 90 percent of sex crimes are committed against women. And yet, he argued, "we ignore the implication: a rape or sex assault should be deemed a civil rights crimes, just as 'hate beatings' aimed at blacks or Asians are widely recognized as violations of their civil rights." Even when states address rape victims' practical concerns by extending the time they have to sue or encouraging courts to award attorney's fees, they don't challenge the public to rethink rape as an attack on women because they are womenin other words, as a form of discrimination.
At the moment, only Illinois, California, and New York City have laws that pick up on this message of VAWA. In a training presentation she gives to volunteer rape crisis counselors, Kaethe Morris Hoffer, legal director for Chicago Alliance Against Sexual Exploitation, talks about a client who won a judgment in Cook County under Illinois' Gender Violence Act. The man who raped her has to write a check for damages every month. Hoffer hopes that, when he writes that check to his victim, for a moment he thinks about what he did. If he's ever tempted to assault a woman again, maybe he will decide it isn't worth it.
[Back to Top]
WSJ: Op-Ed: Why We Need Trial Lawyers
http://online.wsj.com/article/SB10001424052748704804204575069100858780106.html
Why We Need Trial Lawyers
Toyota is only the latest example of lethal defects gone unaddressed by regulators.
By MARK ROBINSON AND KEVIN CALCAGNIE
The alleged need for "tort reform" has become a refrain in American political life. Yet for all the demonizing of trial lawyers, the reality is that product-liability litigation has become an ever more important means of keeping consumers safe.
Case in point: the current Toyota Motor Corp. recalls, with their attendant revelations of corporate obfuscation. This is only the most recent situation in which lethal defects have gone uncorrected for years at least in part because of insufficient government oversight.
In model after model, as we've now learned, car owner complaints were either minimized or ignored altogether by Toyota and by the regulatory agencies that were supposed to police the company. In one review of federal records, the Los Angeles Times found 2,600 complaints of sudden acceleration from 2000 to 2010 by Toyota and Lexus owners. And according to CBS, recently released internal company documents indicate that as far back as 2005 Toyota was tracing its sudden acceleration problem to its softwarenot to floor mats.
Yet for nearly a decade, neither Toyota nor federal regulators aggressively addressed the problem. Toyota is now likely to face a rising tide of class action lawsuits as consumers look to their historic fallback: the courts.
Regulation is crucial to the creation of a level playing field for consumers, particularly in this era of growing corporate power. But regulation alone has never been enough. Federal agencies such as the Food and Drug Administration (FDA), the Consumer Product Safety Commission and the National Highway Traffic Safety Administration have long been swamped by large work loads. And lobbyists are adept at weakening and fending off regulations.
WSJ Toyota Stories
In the News:
Toyota Probes Other Causes of Acceleration, U.S. Chief Says
Toyota Document Cited Savings From Limited Recall
On the Editorial Page:
Akio Toyoda: Back to Basics for Toyota
Michael Dunne: Toyota's Loss Isn't Quite China's Gain
The laissez-faire policies of the Bush administration only further weakened regulatory agencies by cutting funding and personnel, since such agencies were viewed as an impediment to private-sector growth. Government watchdogs soon found themselves so overwhelmed and undermanned that they could scarcely do their jobs.
Consider the FDA. By the mid-2000s, the FDA's caseload extended to more than 11,000 existing drugs, some 100 new drugs a year, and a breadth of products from food to vaccines to medical devices that comprise approximately 25% of all consumer spending.
Resources were stretched so thin that a 2006 report on drug safety by the Institute of Medicine of the National Academies found that the FDA simply couldn't ensure the safety of new prescription drugs. The reasons given? Inadequate funds, cultural and structural problems, and "unclear and insufficient regulatory authorities."
The FDA is just one example. Until April 2009, federal motor vehicle safety standards were so weak that many vehicles could comply and still sustain severe roof collapse from a force equivalent to a 5 mph parking lot collision. Similarly, drivers and passengers are far too frequently ejected in rear-end collisions because the minimum standard for automobile seatback strength is so low that many folding lawn chairs can pass the test.
The recession threatens to further starve the agencies responsible for consumer safety, even as the tough economic climate subjects manufacturers to brutal competition and discourages them from investing in product safety on their own.
As a result, consumers are increasingly left with the courts not only to compensate them when the regulatory system fails to protect them, but also to deter manufacturers from cutting corners in the future.
Product liability lawsuits have played a crucial role in ensuring public safety, encouragingand sometimes compellingmanufacturers to put safety first. A 1988 survey of 264 CEOS of manufacturing companies found that a third had improved their product lines as a result of the threat of litigation, 35% had improved product safety, and 47% had improved warnings to consumers.
At the same time, such lawsuits have provided important assistance to agencies overseeing product safety. Litigation involving defective products has increased access by regulators and the public to critical safety information about particular products. This has resulted in stronger regulations, safer new products, and the removal of dangerous products from the market. Just last year, in Wyeth v. Levine, the Supreme Court noted that state tort suits "can serve as a catalyst" for regulatory action.
Litigation has not only advanced public safety, but has encouraged improvement in products almost too numerous to mention: air bags, seat belts, child safety seats, tires, minivan doors, hot water vaporizers, children's pajamas, farm machinery, firearms, building materials, tobacco products, intra-uterine contraceptive devices, tampons, sleeping pills, anti-depressants, pain medication, appetite suppressants and many more. Toyota is just another sign of how much work remains to be done.
Strong product liability laws remain vital to public health and safetyno matter how passionate the political debate on tort reform.
Mr. Robinson, managing partner at Robinson, Calcagnie & Robinson in Newport Beach, Calif., has represented plaintiffs in the Ford Pinto, Vioxx, major tobacco and other cases. Mr. Calcagnie is a senior partner at the firm.
[Back to Top]
A Product Safety Lawyer's Apology
I am the lawyer joke the ambulance chaser the one the shark wont bite out of professional courtesy. My chosen profession is frequently accused of trading on peoples tragedies and clogging the cog-wheels of free enterprise.
I sleep well at night.
My job is to hold corporations responsible when their dangerous products unnecessarily injure or kill innocent people.
Americans live in relatively safe world. When you bite into a fast-food hamburger, you can be pretty sure that you wont bite into a piece of floor tile. When your child falls off her bicycle, it is a good bet that her helmet wont shatter. When you step on the brake, your car is likely to stop and unlikely to explode. These things are true because corporate America has taken a strong interest in product safety.
The civil justice system, and the trial lawyers who practice tort law, play a critical role in encouraging corporations to focus on safety, which in turn helps maintain the high level of product safety in America.
The people who run corporations are not evil, or even amoral. They contribute substantially to Americas prosperity and tradition of innovation. They advance cultural ventures, charitable giving, and community development. The people who lead Americas corporations run the spectrum from very good to very flawed, just like every other cross-section of America.
But corporations themselves are at their core purely competitive and amoral. They succeed or fail live or diebased entirely on how well they outperform their competitors. Their sole measure of success is profits. Charitable giving, community and cultural involvement are tolerated by the market because they enhance brand name or offer tax advantages, not out of some moral imperative.
Roger L. Martin, Dean of the Rotman School of Management at the University of Toronto summed up the corporate dilemma: [E]xecutives who wish to make their organizations better corporate citizens face significant obstacles. If they undertake costly initiatives that their rivals dont embrace, they risk eroding their competitive position. . .
Working Knowledge, The Harvard Business School Journal, April 22, 2002.
Because safety features cost money, as soon as one manufacturer shaves costs by sacrificing safety, his competitors will be pressured to follow suit. The potential result is a race to the bottom.
The Problem of Marketing
Corporate apologists argue that the free-market alone will advance product safety. They assert that if a dangerous product injures people, consumers will reject it in the marketplace. Instead, they will migrate to safer alternatives, which the market will develop in response to consumer demand.
Unfortunately, the marketplace is ineffective in disseminating facts about product safety. It is fundamentally impossible for consumers to learn and to process sufficient market information to make informed decisions about product safety based on past incidents. How well a bike helmet withstands impact forces or how many brain injuries have been sustained while wearing such a helmet are not readily available facts. In addition, aggressive marketing can mask flaws in its products.
Compounding the problem is that consumers tend to be price sensitive, and given a choice, will generally buy the cheaper of two products particularly if they are unaware of a products safety history. Ignorance of the facts and unrealistic risk assessment, combined with the powerful influence of marketing programs, conspire to erode the markets ability to encourage safer products.
The power of marketing as a corrosive force against safety concerns is illustrated by the success of cigarette manufacturers, who quite efficiently killed millions of Americans throughout four decades of a cynical and misleading marketing campaign until the civil justice system caught up with them. (Perhaps not, as tobacco companies have more than doubled the amount spent on marketing annually to over $15 billion since the 1998 tobacco settlement (source: The Campaign for Tobacco-Free Kids) Anti-cigarette campaigns, with a budget a fraction as big, are no match for big tobacco.
Civil Justice Increases Safety
The civil justice system is the only effective way to bring safety to the bottom line. From the well-known Ford Pinto gas tanks (Grimshaw v. Ford Motor Co., 174 Cal. Rptr. 348 (Cal. App. 1981)), to hundreds of less publicized products, history is full of stories of unreasonably dangerous products sold with impunity until product safety lawsuits forced change. A few examples illustrate the point.
In the 1970s, textile manufacturers were well aware that childrens pajamas were highly flammable and that many children were severely burned or killed each year. The industry refused to treat the clothing with fire retardant chemicals because it would cost money and put them at a competitive disadvantage to do so. It took a series of lawsuits to bring safety to the bottom line of this industry. See, e.g., Gryc v. Dayton Hudson Corp., 297 N.W.2d 727 (Minn. 1980), cert. denied 101 S. Ct. 320 (1980).
In the 1980s, babies were dying in bed. They were strangling on the defectively designed headboard of their own cribs. The only ones aware of the defect were the grieving parents and the manufacture. Although the manufacturer had stopped making the crib, it decided against notifying owners of the danger for fear of adverse publicity. Only after being sued did it notify purchasers and recall the product. See Crusan v. Bassett Furniture Co., Cal. Sacramento Super. Ct., June 11, 1986.
The manufacturer of a birth control product called the Dalkon Shield became aware that women were dying because the device allowed bacteria to bypass the bodys immune systems. It suppressed test results and misled health officials until a series of lawsuits forced it to withdraw this deadly product from the marketplace. See, e.g., Teuton v. A.H. Robins Co., 738 P.2d 1210 (Kan. 1987).
The largest manufacturer acetaminophen knew for years that a person taking this analgesic after drinking alcohol risked liver damage. Not only did the company instruct its marketers to suppress this knowledge, it marketed the product a hangover remedy. Only after a multi-million dollar jury award to a man whose liver was destroyed, did the company begin to warn customers of this danger. See Benedi v. McNeil-P.P.C., Inc., 66 F.3d 1378 (4th Cir. 1995).
Civil Justice Is Good for the Economy
Products liability laws are an asset to our economy, not a drag on it. American innovation and productivity are second to none in the world and historically have led developments in transportation, science, information technology, aerospace, and engineering. The civil justice system has played an important role in the growth of that economy, by prodding businesses to produce and sell the best possible products. As noted by Professor Mark Hager of American University,
because of their superior reputation for safety, due in part to the efforts of product liability[our products] have a superior reputation in the international marketplace. It would be a grave risk to our international competitiveness to toy with the tort system that helps bring about that competitive advantage.
The Litigation Crisis is Just More CynicalMarketing
Those who see a crisis within our civil justice system ignore that juries are made up of ordinary citizens with ordinary common sense, and there are lawyers on both sides of every case. Assuming that most cases result in a fair outcome, the real economic impact of our tort system is caused by those who cause the injuries through their neglect, not the people who are injured or the lawyers who represent them. A corporation paying for the damage caused by its product is merely compensating a victim for a real loss.
Despite vocal concern raised about a tort crisis, there is no evidence to support such concern. Indeed, the number of personal injury cases in America decreased by nearly 32% between 1992 and 2001. The number of product liability cases decreased by 76% in that same time period (source: Bureau of Justice Statistics, U.S. Dept. of Justice, 2004 Civil Trial Cases and Verdicts in Large Counties, 2001). The size of personal injury verdicts also decreased by over 50% (median inflation-adjusted payout down 56.3%) (Id.). The boogie man of litigation lottery is also a myth. In 2001, the median jury award in a personal injury lawsuit was a princely $28,000. (Id.)
Hug a Products Safety Lawyer Today
Without product liability laws, safety necessarily takes a back seat to profits. The next time your antilock brakes stop you on an icy road; the guard on your power saw protects your hand; or the childproof medicine cap thwarts your three-year old, give a nod to the products liability laws that have kept America strong and that have brought safety to the bottom line.
Rob Stoney is a Partner in the Fairfax, Virginia, firm of Blankingship & Keith, P.C. He represents people in products liability, personal injury, and trucking accident cases.
[Back to Top]
Virginia State Bar Recognized Robert J. Stoney for His Pro Bono, Court-Appointed Work
Lawyers who have done significant pro bono or court-appointed work in Brunswick, Fairfax, and Franklin counties are being recognized by the Virginia State Bar with Circuit Awards.
The awards are part of an ongoing pilot project, now in its third year, to recognize extraordinary contributions to the Virginia judicial system by lawyers in selected circuits. Recipients were nominated by lawyers in their home circuits. Awards will be presented in ceremonies in each designees jurisdiction.
The 2009 recipients are: . . .
Robert J. Stoney, with the Fairfax firm of Blankingship & Keith PC, in the 19th Circuit. He has a bachelors degree from the University of Virginia and a law degree from the College of William and Mary.
According to the nomination letter from his firm, Stoney began representing pro bono clients in criminal and civil matters as soon as he began practicing, and continued for over two decades. His cases have involved cutting-edge legal theories and those that simply and importantly provide relief for those individuals who would not have had counsel without his efforts.
His cases have involved evictions, three death penalty appeals, domestic violence, and litigation over denied insurance coverage after an automobile accident. He spends 50 to 100 hours per year on pro bono cases. He also takes a case or two each year for no fee, and the client donates what would have been the fee to legal aid. He mentors associates in his firm who do pro bono work, and he has helped lead several organizations that promote legal services for indigent persons.
[Back to Top]
Tort Reform?
http://www.washingtonpost.com/wp-dyn/articles/A58316-2005Jan8.html
[Back to Top]
New Hours of Service rules for truckers struck down
The Court of Appeals for the District of Columbia Circuit held on July 16th that the new HOS (Hours of Service) rules for truckers were arbitrary and capricious for not taking into account their effect on driver's health--specifically sleep deprivation. The court ordered the new rules vacated and ordered the agency to revise the rules consistent with the opinion.
Click here to read the opinion (pdf format).
[Back to Top]
Bus driver settles claim for $5 million
A bus driver who lost a leg in a collision in Northern Virginia has settled his lawsuit for $5 million.
Terry Shoemaker, 56, was driving 48 high school seniors from Berkley, W.Va., in a motor coach to Disney World when the left front of his bus clipped the right rear of a tractor-trailer in April 2006 on U.S. 17 between Warrenton and Fredericksburg.
Shoemaker lost his lower left leg and foot in the crash and also suffered a shattered right hip and knee. He sued, and while a Richmond Circuit Court jury was deliberating the case last Tuesday, his attorney, Robert J. Stoney of Fairfax, and the owner of the tractor-trailer, Eastern Sleep Products Co. of Richmond, agreed to settle it for $5 million.
Stoney, who tried the case with colleagues Peter Everett and Mark A. Towery, said the collision occurred when traffic in the right lane slowed in front of the tractor-trailer, and the driver pulled from the right lane into the left in front of Shoemakers bus, which was in the left lane.
Because vehicles were in a turn lane to his left, Shoemaker turned to the right in an effort to fill the spot in the right lane that the tractor-trailer had vacated.
The collision between the front of the bus and the rear of the tractor-trailer peeled the sheet metal from the front of the bus over Shoemakers legs.
Rescue workers took 2 1/2 hours to extract Shoemaker from the wreck, and he first learned of the extent of his injuries when he heard a paramedic say, His legs gone.
Four students and a chaperone were treated at a hospital and released. Stoney said he represents one of those students in a personal injury case against the mattress manufacturer, but her injuries are not nearly as serious as those of Shoemaker.
The defense contended that Shoemakers bus was partly in the right lane and partly in the left lane when the tractor-trailer driver slammed on his brakes.
That meant Shoemaker was following too close and therefore was contributorily negligent, the defense contended. It retained an accident reconstruction expert to support that contention, but Judge Richard D. Taylor excluded his testimony because it did not account for all the variables in the crash, Stoney said.
A student testified in rebuttal that the collision occurred as Shoemaker had described it.
The jury heard testimony that Shoemaker has arthritis in both knees and hips from the crash and will have to have hip and knee replacements on his right leg. His past and future medical expenses total $457,000, and he has past and future wage losses of $350,000.
Stoney said Shoemaker still drives about 15 days a month for Wolfs Bus Lines, which is based in southeastern Pennsylvania where Shoemaker lives. He has an artificial left leg, but he cant work in the winter when snow and ice is on the ground and has difficulty walking on uneven ground, Stoney said.
When he was in the hospital after the crash, Shoemaker told his physicians that he intended to escort his daughter at her wedding three months later, Stoney said.
The jury saw a video of him walking her down the aisle on crutches with his son behind him in case he lost his balance.
http://www.valawyersweekly.com/weeklyedition/2009/02/23/bus-driver-settles-claim-for-5-million/
[Back to Top]
Blankingship & Keith Lawyers are featured in "Million Dollar Settlements for 2008"
Blankingship & Keith is honored that four of its lawyers were featured in "Million Dollar Settlements for 2008" by Virginia Lawyers Weekly, January 26th issue.
Robert J. Stoney, Mark A. Towery, Peter S. Everett, and Chidi I. James were featured on that list for a Million Dollar plus settlement, please see each individual listing below;
$2.16M settlement in Jody Ott, personal representative of the Estate of Patrick Ott v. "Acme Aerial Lifts" Inc. Robert J. Stoney & Mark A. Towery
$2.1M settlement in Doe v. Washington Metropolitan Area Transit Authority Peter S. Everett, Chidi I. James and Mark A. Towery
http://www.valawyersweekly.com/specialfeatures/million-dollar-settlements-of-2008/
[Back to Top]
