Charlie Sheen challenges the notion that there is no such thing as bad press.  With the Middle East erupting in protest while Congress and state legislatures skirmish over the economy, the bad behavior of one TV star should not amount to a hill of beans in this world.  And yet Sheen is a huge story, with his number of Twitter “followers” skyrocketing.  Why?  How many times have you heard the term “train wreck” in connection with Sheen?  Are we that bored?  Do we enjoy watching someone’s life burst into flames?

A larger question is whether any good can come out of Sheen’s debacle.  Many ordinary people are afflicted with substance abuse and mental illness.  Will Sheen highlight the horror of those conditions and their effects on children, coworkers and others? Congresswoman Giffords and our wounded veterans bring attention to Traumatic Brain Injury (TBI) and Post-Traumatic Stress Disorder (PTSD).  Will we learn something more important from Sheen’s circumstances than whether Two and a Half Men returns to the air?

People severely injured in accidents frequently experience TBI, PTSD, anxiety and depression.  Family courts are filled with victims of mental illness, with young children subjected to unstable, delusional or sociopathic parents.  Depression among the elderly is rampant.

Charlie Sheen can pay for repeated visits to rehab and a string of psychiatrists.  The vast majority of Americans with mental illness or substance abuse cannot afford care.  Mental health treatment is excluded or severely limited by most insurance plans.  Injured workers cannot find a psychiatrist who will accept worker’s compensation.  Public hospitals and clinics are overburdened and cannot begin to cope with the demand.  Commit someone with a serious mental illness, and he or she is quickly put back on the street.

We have seen what happens when a deranged person gets a gun.  How did all those killers escape detection?  Maybe they were detected, but there were no options to treat them or protect others from their rage.

Until we take mental health seriously and improve access to mental health care, there will be no change in a very sad and dangerous situation.

Federal “Minimum Standards” Held No Obstacle to Product Safety

Delbert Williamson was driving the family’s 1993 Mazda MPV minivan through Utah.  His wife Thanh was seated in the rear middle seat, next to their daughter Alexa.  Everyone in the van had lap and shoulder belts at the time of their head-on collision, except Thanh.  Her seat was equipped with a lap-only belt.  Everyone in the van survived the crash, except Thanh.

The Williamsons sued Mazda alleging a lap and shoulder belt would have saved Thanh’s life.  This is known as a “crashworthiness” case.  The family does not claim Mazda caused the accident.  However, they produced evidence that Thanh died because her body “jackknifed” around the lap-only belt, causing massive internal injuries that led to her death. Had Thanh been wearing a lap and shoulder belt, her injuries would have been less severe; she would have survived the crash. They sued Mazda for Thanh’s death, which would have been avoided had the vehicle not had a defective lap-only seat belt.

Mazda argued federal regulations regarding seat belts preempted (prohibited) this lawsuit.  Mazda claimed lawsuits like the Williamsons’ pose an obstacle to enforcement of those regulations.  Courts have upheld “obstacle preemption” in other cases.  Mazda expected to win.

Product manufacturers spend millions of dollars defending lawsuits they can and should settle, even when the cost of settlement would be far less.  Their strategy is simple: make the cases too expensive for claimants and their lawyers.  Car companies are among the most notorious for this “defend at all costs” philosophy.  Mazda took the Williamson family all the way to the Supreme Court of the United States over the issue of whether the family was allowed to sue.

However, in Williamson v. Mazda (decided February 23, 2011), the Supreme Court of the United States unanimously ruled that federal regulations are not necessarily an obstacle to product safety.  Justice Breyer wrote it is wrong to “treat all such federal standards as if they were maximum standards, eliminating the possibility that the federal agency seeks only to set forth a minimum standard potentially supplemented through state tort law.”

This was a rare “win” for consumers.  For a Supreme Court that regularly holds in favor of big business, this case may be the signal the Court is taking a different path.  Let’s hope so!

As Middle Eastern autocracies erupt in protest, we Americans know what the people in the streets are fighting for: Freedom.  We have the luxury of debating what “freedom” means.  I think “being free” is reflected in three ideals:

1.  Democracy. People are entitled to choose their government, but is democracy enough?  If they hold an election and choose a new dictator, what have they gained?  Look at Iran.

2.  Pluralism. Liberty is translated from theory into practice when citizens have equal rights regardless of race, gender, religion, national origin or sexual orientation.  Americans embrace freedom, but what sets us apart is our commitment to diversity.

3.  Law. What good are rights without a legal system to enforce them?  Our Founding Fathers recognized all the freedoms in the Bill of Rights depend upon the Sixth and Seventh Amendments – the ability to enforce those rights in a court of law, before a jury of your peers. Thomas Jefferson said, “I consider trial by jury as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution.”

Those are three ideals worth fighting for!

Saying “No” is one of the worst jobs of a trial lawyer. We are in business to help injury victims.  People who call expect us to do something! When the law and facts are unfavorable, people do not take the news well.  And who can blame them?  They keep hearing people get rich from lawsuits.  It is untrue.  At best, people are compensated and not enriched in lawsuits.  “Frivolous lawsuits” and the “lawsuit lottery” are illusions.  You are much more likely to lose a valid lawsuit than win a frivolous one.  But the sales job by the “tort reform” lobby has been relentless, so people have expectations, particularly when their injuries are not their fault.

Your legal rights and remedies have been slashed and burned by an aggressive, anti-consumer, pro-insurance Texas Legislature and Supreme Court.  As a result, we lawyers say “No” on many cases we accepted in the past.

Premises liability cases – where someone slips or trips and falls – are an example.  For years, lawyers could win these cases if we showed an operator of a business should have known there was a hazard.  Over the past twenty years, the Supreme Court of Texas has made it difficult to win a case without showing employees of the business actually knew there was a hazard.

Most people who slip and fall in stores are treated as pests by store management and even worse by claims adjusters.  They are strung along and asked for proof of their injuries only to be told (often after the two year statute of limitations passes) the store was not at fault and they will receive no help.

Retail stores refuse to pay injured customers’ medical expenses as they arise.  People with health insurance have a means of seeking care.  Those without coverage are left in limbo.  They cannot afford treatment, and most lawyers will not help them.  The lines at public hospitals like Ben Taub and LBJ are long and frustrating, but they are frequently the only choice for people with no coverage.

So, what should you do if you fall at a store or other public business?  Here are steps to follow:

1.  SAY SOMETHING! Let people around you know you have fallen.  Summon help from store personnel and bystanders.  Try to find witnesses to help you confirm the hazard had been there a long time and was being ignored by store personnel, and get their contact information (name, address, phone, email).

2.  TAKE PICTURES. Use a camera or smart phone to take as many photographs of the area as possible – including the source of the spill or other hazard – before store employees change the scene.

3.  SEEK MEDICAL CARE. Do not wait for the store’s claims staff to help you.  Go to a hospital or the doctor immediately, even if you have to go to a public hospital or emergency room.  Continue to seek care as needed.

4.  WRITE THE STORE.  Send a certified letter with a return receipt (green card).  State the date, time and location of your fall and ask the store to “preserve any and all video images that show the area of the fall and 200 feet around that area for at least two hours prior to the incident.”  Keep a copy of your letter.  If you have a fax machine that will print out a confirmation sheet, you can fax the letter instead of sending it by certified mail.

5.  CALL A LAWYER.  Do not wait to be told “NO” by the store’s claims adjuster.  Go over the facts of the incident with a lawyer as soon as possible.

Even if you follow these steps, you may not have a case.  But you may at least have a fighting chance!

As Rep. Gabrielle Giffords continues to heal from her injuries, we in Houston should be proud she chose TIRR – the Institute for Rehabilitation and Research located in the Texas Medical Center – as the next stop on her road to recovery.  Few places offer such amazing resources for the treatment of brain injuries.

Just as the wars in Iraq and Afghanistan have brought to light the horrors of TBI (traumatic brain injury) and PTSD (post-traumatic stress disorder), Rep. Giffords’ journey will shine a light on the world of rehabilitation from serious brain and spinal cord injuries.  TIRR and its amazing doctors, nurses, therapists and other caregivers rehabilitate patients with many forms of impairment caused by injury and illness.  Once patients cross the TIRR threshold, the focus turns from what brought them there (car accident, stroke or gunshot wound) to how they will be rehabilitated to lead a productive life.  TIRR’s halls are lined with photographs of success stories, most of whom are people you do not know.  Their stories are no less compelling, even if they do not occupy the spotlight of national recognition.

The road is often difficult, and not all the stories are successful.  Success in the world of rehabilitation often comes in small increments: the ability to feed oneself, operate a motorized wheelchair or communicate with assistive devices.  There are also big wins, such as Ken Everett, the Buffalo Bills football player who came into TIRR paralyzed from the neck down and walked out.

One harsh reality in the world of rehabilitation is the enormous cost of care, a burden which will thankfully never impact Rep. Giffords.  However, from the moment a catastrophically injured patient enters rehabilitative care, funding is an issue.  Lifetime maximum benefits and bureaucratic red tape are unavoidable elements of an insurance-based healthcare delivery system.  For people with no coverage, the perils are even greater.  Treatment at the TIRR level of rehabilitation is expensive, and even though TIRR has become a part of the Memorial Hermann system, it operates on a budget.  Just as importantly, the needs of patients do not end when they leave TIRR.  In the absence of adequate insurance coverage or resources, many patients become wards of their families, as parents, children and siblings become principal caregivers.

And some patients end up alone in nursing homes.

We all wish Rep. Giffords a full and complete recovery.  As she goes through her recovery, she may become an advocate for those who face similar challenges.  We should all be prepared to listen.

Amid the rush to judgment in the aftermath of the terrible events in Tucson, there are two inescapable realities.  There are people among us who are mentally unstable, and many of them have access to high powered weapons.

These two truths have the potential to affect all of us.  There are men and women of all ages with undiagnosed, untreated mental illness.  Guns which can inflict massive levels of damage are available at retail stores.  A combination of the two is potentially deadly.  If you operate a business or go to places where people congregate, you face this potential threat.

Access to mental health care is extremely limited.  Health insurance policies and plans severely restrict benefits for psychiatric care.  Public mental healthcare services are sparse and overburdened. Many people with serious psychiatric conditions are not diagnosed or treated.

Guns available at retail stores and online are powerful and have large capacities.  A deranged shooter can inflict dozens of casualties in a matter of minutes.  Columbine…Virginia Tech…Tucson.  All involved lunatics using high powered weapons.

Because individuals have the capability of acquiring weapons of mass murder, the need to reform our mental healthcare system has never been more urgent.  This should not be a political fight.  Insurance companies and employer health plans should not be permitted to discriminate between coverage of physical and mental conditions.  People who observe family members, friends or coworkers exhibiting signs of severe mental illness, and particularly aggressive or violent behavior, should have better resources so that dangerous people can be identified, treated and prevented from buying guns.

We do not know if these measures would have prevented what happened in Columbine, Virginia Tech or Tucson.  But they might prevent the next tragedy.

This week, for the first time, I am letting someone else do the blogging. Here (with permission) is Andrew Cochran of the 7th Amendment Advocate speaking against proposed legislation that will require all civil litigants who lose a lawsuit to pay their opponent’s attorney’s fees. Mr. Cochran’s essay was published on December 10, 2010:
The Wall Street Journal today commended Texas Gov. Rick Perry for proposing that a losing plaintiff in a civil suit pay all legal costs for the defendant, similar to what is used in the British legal system. Ironically, the WSJ refers to such a change as “revolutionary,” which strikes me as rather ironic, since we fought a real Revolution precisely to stop doing things the British way. But there are substantive reasons to oppose a “Loser Pays” system imposed at any level of government.

My first objection is that any state-imposed economic disincentive artificially limits Americans from exercising their Constitutional rights. Over 500 years of experience with the British legal system led the Founding Fathers to assert time and again that Americans have a right to a civil jury trial equal to the right to a jury trial in criminal cases. James Madison, for one, called the rights enumerated in the 7th Amendment “as essential to secure the liberty of the people as any one of the pre-existent rights of nature.” The Founding Fathers would never have thought about imposing economic barriers to the exercise of “unalienable” rights. Britain has used “Loser Pays” for centuries, but the Founding Fathers and their successors saw nothing about “Loser Pays” worth copying into the American legal system.

Second, plaintiffs often cannot afford to pay their own attorneys at all, except on a contingency fee basis. So “Loser Pays” is inherently pro-defendant, and would especially favor corporate defendants who can outspend any individual defendant. Already the vast majority of incidents of medical malpractice do not result in a legal claim because the costs of bringing the case outweigh the expected recovery. “Loser Pays” provisions will make it even more difficult for victims to assert their rights and seek fair compensation in court, because injured patients cannot risk the possibility of recovering little in damages but having to pay lots for the defendant’s legal fees.

And is the British system really all that attractive? As one professor noted in 2005, a look at the British “Loser Pays” system “reveals a far more complex reality, one full of disputes over fees and related issues, and with plaintiffs… who can win paltry awards and still be owed astronomical legal fees.” No one can reasonably assert that adding “Loser Pays” would magically reduce litigation costs; the American legal system has procedural safeguards not seen elsewhere that raise the cost to all parties, while dispute costs in Britain are set under strict standards. Maybe that’s why only ONE state in the U.S., Alaska, has chosen to institute a “Loser Pays” system in its courts. The aforementioned professor wrote about the Alaska experience that “rather than reducing litigation, they often increased the amount of settlements, because the expenses at stake increased the value of a winning case.” Florida implemented “Loser Pays” for years for medical malpractice cases, then reversed course amidst heavy criticism (even a “Loser Pays” proponent called it “imperfect.”)

And it’s not as if states haven’t tried other forms of tort reform; to the contrary, most have imposed some limits on our 7th Amendment rights, claiming that tort reform would control health care costs. Texas already limits punitive damages and is recognized as one of the most pro-tort reform states in the country. That hasn’t helped medical costs in Texas; the city of McAllen is one of the most expensive health-care markets in the U.S.

“Loser Pays” is another vehicle for limiting our cherished Constitutional rights. Civil suits didn’t cause the Great Recession, the crackup of Wall Street, the Deepwater Horizon explosion and the worst oil spill in the world, or multiple deaths from bad products such as drop-down cribs or defective pacemakers. Civil suits protect our religious liberty and promote local control over excessive bureaucracy, and actually have added consumer protections to products such as toys and cars. Let’s stop trying to take a hatchet to the Bill of Rights.

Thanks to Mr. Cochran for permission to reprint his essay.

“Loser Pays” legislation would make our Founding Fathers cringe.  The rights of ordinary people, including the right of trial by jury in civil cases, were at the heart of the American revolutionary movement.  What was true in 1776 is true in 2011.

You may not have a case you want to bring to court today, but at some time in your life you may have a dispute against a person or company with more resources than you.  I am not talking about frivolous lawsuits – existing laws punish people that file those, and cases with no merit can be thrown out on “summary judgment.”  And I am not just talking about personal injury and wrongful death claims.  The Harris County District Clerk’s website lists over 180 types of civil claims that are filed in court.  “Loser Pays” legislation says you will be treated as a fraud if a jury decides a legitimate dispute against you.

Our legal system thrives when courts provide all citizens with a fair forum to decide controversies.  The cost of litigation has skyrocketed because of abusive tactics by wealthy corporations who treat every lawsuit as a war of attrition, spending their opponents into the ground.  “Loser Pays” legislation is yet another scheme to limit the rights of ordinary people, in this case by scaring them away from exercising their right to trial by jury.

Driving While Intoxicated, Driving While Cellphoning and Driving While Texting are all dangerous. A new threat lurks on our streets that threatens your safety – Driving While NAVing.

Navigation devices are common. There are integrated NAV systems in new cars, Garmin-style NAV units that mount on windshields, and even smartphone apps like AT&T NAV and Verizon Navigator. Hertz has a “NeverLost” NAV option that is a perfect description: plug in your destination and the NAV guides you, providing turn-by-turn assistance along the way. You are never lost. Even if you miss a turn, the NAV calculates a new route, and within seconds you are back on track. No maps, no stopping to ask strangers, no arguments with passengers, just smooth sailing.

So where is the danger? What is the big deal?

The problem is that people drive while NAVing. Instead of stopping to input data, drivers tap in addresses while their vehicles are in motion. The distraction factor is identical to driving while texting. Just watching the NAV to check your route or the traffic ahead (a new feature) takes your eyes and attention off the road. If you are not watching what is in front of your vehicle, you may run into it. That could be a stopped car, or a pedestrian crossing that street you are viewing on the NAV screen instead of seeing through your windshield.

Driving does not lend itself to multitasking. If you must NAV, pull over!

Have a safe New Year!

From all of us to all of you, have a Happy Holiday, and a healthy, safe and happy 2011!

Steve Waldman and Kevin Kyser, Attorneys
Debbie Bowman, Eileen Palmer, Rosy Gonzalez and Sydney Igleheart, Staff

A client of mine attaches an image of the 9/11 heroes to every email she sends me.  That image was made into a postage stamp (below) commemorating the bravery of the first responders who rushed to Ground Zero following the tragedy, risking their lives and their health to dig their fellow citizens out of the rubble.

These brave men and women who went to Ground Zero did not stop to check if proper procedures were being followed. They did not even consider that they were placing their lives at risk, and in fact were told by the EPA that there was no hazard. This was untrue. Ground Zero was a stew of toxic substances, including asbestos and heavy metals. A study performed by Mt. Sinai Hospital determined that “roughly 70 percent of nearly 10,000 workers tested at Mount Sinai from 2002 to 2004 reported that they had new or substantially worsened respiratory problems while or after working at ground zero.” Sadly, many of these people have no medical coverage for their injuries. All of them deserve full medical coverage and financial compensation.

The First Responders Bill needs to be passed before the Lame Duck session of Congress ends! To make sure there is sufficient support for the bill to override a threatened filibuster, please contact your U.S. Senators now! The vote may take place today!

The best way to communicate with your Senators is to send a fax. For those of us in Texas, here are the fax numbers for your U.S. Senators:

Senator Kay Bailey Hutchison – 202.224.0776
Senator John Cornyn: 202.228.2856

You may also send an email via each Senator’s website contact form:

Senator Hutchison’s Online Contact Form
Senator Cornyn’s Contact Form

Let your Senators know that holding up passage of the First Responders Bill is wrong and encourage them to pass it today!