Published By: Maxwell S. Kennerly, Esquire

Philadelphia Personal Injury Lawyer

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Between our catastrophic injury and birth injury practices, we spend a lot of time at the firm immersed in the science and medicine of brain damage. Just as consciousness and dualism have vexed philosophers for ages (* see my comment), the real causes and treatment of brain injury have remained elusive for generations. There’s a reason for the phrase ‘not exactly brain surgery‘ — brain surgery is notoriously unpredictable.

After reading Jane Rosett’s compelling article in The New York Times about ‘starting again’ after injuring her right temporal lobe in a car accident (sample: “traumatic brain injuries destroy connections between and within people — so how are we to build a self-empowering community?”), and Diane Wyzga’s post about the Going the Distance documentary, I thought I’d write about some of the latest developments in the field. Rosett’s article (and David L. Brown’s documentary) seems to be part of a larger trend in the diagnosing, treatment, and public perception of brain injuries.

Traumatic brain injuries (TBI) are particularly difficult to treat in a meaningful way. Even treatments that seem obvious, like reducing intracranial pressure, don’t work the way we think they should. In April this year, the New England Journal of Medicine published a study that randomly assigned 155 diffuse traumatic brain injury patients to either undergo decompressive craniectomy or standard treatment. The results were surprising: the patients’ intracranial pressure went down and they left the intensive care unit faster, but six months later they scored lower on the Extended Glasgow Outcomes Scale. Sometimes it seems we haven’t progressed much since ancient trepanation: cut a hole in the patient’s head and hope that makes them feel better.

Three months after that study, the Harvard Gazette reported on two studies which may have identified some of the reasons why TBI doesn’t respond to the sorts of mechanical treatments (like surgery to reduce pressure, placing a shunt, etc.) we assume would fix the problem. In short, TBI doesn’t just damage the structures of the brain, it damages the cells on a cellular level:

Bioengineers at Harvard have, for the first time, explained how the blast of an exploding bomb can translate into subtly disastrous injuries in the nerve cells and blood vessels of the brain. …

Papers published in the journals Proceedings of the National Academy of Sciences (PNAS) and the Public Library of Science’s PLoS One provide the most comprehensive explanation to date of how abrupt mechanical forces cause catastrophic physiological changes within the brain’s neurons and vasculature. …

When the brain encounters a jarring force, such as an exploding roadside bomb, its delicate tissue slams against the skull. The result, if the patient survives, can be a temporary concussion, a more dangerous hemorrhage, or long-term TBI, which can lead to the early onset of Parkinson’s or Alzheimer’s diseases. …

Parker’s research has demonstrated that the forces unleashed by an explosion physically disrupt the structure of the focal adhesion complex, setting off a chain reaction of destructive molecular signals within the nerve cells of the brain.

The papers themselves are available online: A Possible Role for Integrin Signaling in Diffuse Axonal Injury and Blast-induced phenotypic switching in cerebral vasospasm.

It’s more than a little surprising to see that an explosion could, in some instances, not injure the structures of the brain, and not even break up the cell, but nonetheless cause changes in the way the cell operates, but that seems to be the case:

The blast from an explosion creates a surge in blood pressure, which stretches the walls of the blood vessels in the brain. To study this, Parker’s team of bioengineers built artificial arteries, made of living vascular cells, and used a specialized machine to rapidly stretch them, simulating an explosion. While this stretching did not overtly damage the cellular structure, it did cause an immediate hypersensitivity to the protein endothelin-1.

That might also explain why war veterans have a higher rate of dementia: not only have they suffered TBI, but they’ve suffered blast-induced TBI, which causes a cerebral vasospasm that induces the protein hypersensitivity. Even better, the researchers identified potential treatments, at least for the integrin disruption, in the form of an enzyme inhibitor administered soon after the blast. 
Continue Reading The New Science of Traumatic Brain Injury Treatment

It’s a common occurrence: an employee is out on the road as a driver, passenger, or pedestrian as part of their job when they are hit by a car. It’s particularly common for municipal employees like police officers and for delivery drivers and highway workers because they are, of course, out on the road and in danger a lot more than the rest of us.

The next legal step is routine: the injured employee files a claim for workers’ compensation, which will cover some medical expenses and some fraction of their salary, and then files suit against the driver that hit them. The problem, though, is that the Pennsylvania minimum insurance coverage is a mere $15,000 per injured person, so workers’ compensation plus the tortfeasors’ insurance policy limits usually isn’t much. It’s often less than the simple out-of-pocket medical expenses and lost wages, not to mention any sort of pain and suffering or future health care.

That’s where things get complicated. Although Pennsylvania doesn’t require uninsured motorist or underinsured motorist coverage, every employer-sponsored plan I’ve seen includes it. In theory, then, the employee can claim their UM/UIM coverage as well once they’ve exhausted the tortfeasor policy.

And that’s where everyone hits a snag: because the insurance company providing the workers’ compensation is typically the exact same company providing the UM/UIM coverage, the insurers often put into a policy an exclusion that does not apply UM or UIM coverage to any claim also eligible for workers’ compensation benefits. Is that legal?

Let’s pause for an aside: Pennsylvania’s Motor Vehicle Financial Responsibility Law (MVFRL), which replaced Pennsylvania’s prior No-Fault Act, has consumed our courts, particularly our Supreme Court, for a generation now. The Pennsylvania Supreme Court has decided dozens of MVFRL cases over the past twenty years. In my humble estimation, it is the single most-interpreted law in Pennsylvania, which makes sense given how we have about 350 car crashes a day, four of which, on average, result in a fatality.

Back on track, last week the Pennsylvania Supreme Court decided Heller v. Pennsylvania League of Cities, firmly answer the “is that legal?” question with “no”:

We granted review to determine whether it is a violation of public policy to exclude from underinsured motorist (“UIM”) coverage a claim by an individual eligible for workers’ compensation benefits. For the following reasons, we conclude that a workers’ compensation exclusion in an employer-sponsored insurance policy violates public policy and is, therefore, unenforceable.

The court went into a number of reasons why the exclusion was void, but the biggest reason was a simple practical review of the reality of employer-sponsored insurance coverage. If the insurance applied only when an individual was injured in the scope of their employment, yet wasn’t available when workers’ compensation applied, then when, exactly, could employees use the UIM coverage paid for by their employers?
Continue Reading PA Workers Injured In Car Accidents Can Now Recover UIM Benefits

Last week The Times Leader in Wilkes-Barre reported:

A federal jury on Tuesday ruled against an area woman who was seeking more than $20 million from Toys R Us for injuries she allegedly suffered when an oversized candy dispenser fell and struck her in the head.

The jury, which heard from several dozen medical and other experts over a six-week trial, deliberated for about two hours before finding the national toy store chain was not negligent in connection with the Oct. 26, 2008, incident involving Dr. Mary Elizabeth Jordan Flickinger of Clarks Summit.

Flickinger alleged she suffered debilitating injuries, including several herniated discs, when a large M&M candy dispenser at the chain’s flagship store in New York City dislodged as she attempted to dispense candy. The dispenser struck her in the head and snapped her neck back, according to the lawsuit filed in 2010.

It’s always jarring to hear personal injury lawsuits referred to as claims for specific amounts of money (here, that “more than $20 million”) because many states, including Pennsylvania, don’t allow trial lawyers (whether plaintiffs’ or defendants’) to recommend specific sums of money to the jury. You’re allowed to introduce as evidence bills the plaintiff incurred (medical bills, funeral expenses, etc). You can have doctors, nurses, and life care planners talk about the cost of future medical care. You can even have an economist get up on the stand and give ranges for lost wages and the impact of inflation, but you can’t just tell the jury how much you think all of that adds up to.

I don’t have the slightest doubt that jurors are completely confused why the lawyers keep throwing around monetary figures and yet, when it comes to the case as a whole, the lawyers skirt around the issue of money (because they’re not allowed to) and start talking about justice and fairness and other off-putting banalities. The jury never hears how much the plaintiff believes their “pain and suffering” is really worth, they just have to figure it out on their own.

The court filings that only the judge sees, though, are filled with monetary figures, like the pretrial memoranda filed by plaintiff (a copy here), the source of that “$20 million” number claiming economic damages of $7,000,000 to $12,000,000 and pain and suffering of $5,000,000. The jury never saw that, it’s just for the judge to understand what the parties thought of the case.

An interesting point from those pre-trial memoranda (defendant’s is here) relates to the length of the trial. Plaintiffs punted on predicting the length of the trial until Daubert motions were decided; Defendant thought the case would last 12 to 15 days, or somewhere in the neighborhood of three weeks, not the six that it actually took.

Which is where I think the case went wrong for the plaintiff.
Continue Reading The Perils Of The Never-Ending Personal Injury Trial

Read more about child abuse lawsuits.

The Inquirer has an interesting article about Parx Casino and its “dubious distinction of being the only gambling hall in Pennsylvania where adults have been caught leaving children in vehicles parked outside while they gambled inside”:

In the last 17 months alone, Parx – Pennsylvania’s top-grossing casino – saw 10 individuals arrested on its property and charged with endangering the welfare of children left in vehicles while the adults gambled inside.

In just the last week: Michael Roytman, 29, of Huntingdon Valley was charged with leaving his 6-year-old daughter in his car in sweltering heat and was jailed after failing to post $75,000 bail; Frances Casey, 39, of Abington, was charged in connection with leaving two nephews, ages 1 and 2, and a 9-year-old niece in her automobile July 16. She is to be issued a court summons.

Parx is taking action on the matter, said casino spokeswoman Carrie Nork-Minelli.

“This is the action of irresponsible adults, and we do our best to combat it with the highest level of security and surveillance possible,” she said. “We’ve added additional security teams and patrol units – that are not required by the Gaming Control Board – to help with this type of deplorable activity.”

But the most recent incidents have occurred despite those stepped-up measures.

It’s a serious problem; about fifty children die every year because they were left unattended in a car.

The article is titled “Should Parx Casino be liable in child-neglect cases?” but the article is more about the Gaming Control Board’s review of the situation rather than about Parx’s liability for those incidents, and to my knowledge no lawsuits have been filed alleging as much. Casinos’ primary legal liability tends to involve slip-and-fall cases or liquor liability, but, if the Parx trend continues, we might see lawsuits arising from these issues, so let’s consider the question anyway.

As the casino’s spokeswoman said, it is, of course, “deplorable” and “irresponsible” for parents to knowingly leave their children unattended in cars while they go gamble, and the parents are primarily responsible for the harm, but that doesn’t necessarily mean the casino isn’t also responsible for the problem.Continue Reading Parx Casino’s Potential Liability For Children Left Unattended In Cars

Big news across the internet yesterday after “Jackass” star Ryan Dunn and a passenger died in an early-morning one-car crash out near West Goshen, Pennsylvania:

Dunn, 34, of West Chester, was reportedly driving his 2007 Porsche at 2:38 a.m. on the Route 322 bypass westbound in the area of Route 100 when he went off the road, according to statement issued Monday morning by West Goshen Township police.

Police said that upon arrival they found the car off the road in the woods engulfed in flames. Scorch marks were still visible at the scene just before noon on Monday, as well as a mangled guardrail and splintered trees where the car apparently left the road.

…

About two hours before the crash a photo was posted on Dunn’s twitter page, depicting Dunn and two other men apparently drinking.

Jalopnik has a little more about the car and the circumstances. The passenger has been identified as Zac Hartwell. Roger Ebert may have summed up the thoughts of many, but let’s not forget that Dunn and his friends weren’t just drinking, they were paying customers at a bar. Pennsylvania’s Dram Shop Act, 47 P.S. § 4-493, makes it unlawful:

[f]or any licensee or the board, or any employe, servant or agent of such licensee or of the board, or any other person, to sell, furnish or give any liquor or malt or brewed beverages, or to permit any liquor or malt or brewed beverages to be sold, furnished or given, to any person visibly intoxicated, or to any minor…

As is well-settled law, proving a drunk driving lawsuit in Pennsylvania is a two-step process: “A violation of this statute is deemed negligence per se, and the defendant will be held liable if the violation is the proximate cause of the injuries. Thus, in order for [injured plaintiffs] to recover, they must prove two things: (1) that an employee or agent of Appellee served the decedent alcoholic beverages at a time when he was visibly intoxicated; and (2) that this violation of the statute proximately caused his injuries and ultimate death.” Fandozzi v. Kelly Hotel, Inc., 711 A. 2d 524 (Pa. Sup. Ct. 1998).

The photo on Twitter of Dunn and his friends doesn’t necessarily mean Dunn and his friends were “visibly intoxicated,” but it certainly doesn’t rule it out, either. An employee of the bar he was at, Barnaby’s, claims “he didn’t seem intoxicated,” but that’s no surprise — the alternative would be to admit illegally serving alcohol to a visibly intoxicated individual and thus admit liability.

[UPDATE: Since this post was written, Dunn’s toxicology report has been released, showing a blood-alcohol level of 0.196, more than double the legal limit of 0.08. Although there’s no BAC at which a person is, as a matter of law, visibly intoxicated, it seems more than a little suspect that Dunn “left hop, skip, jumping” and then had a BAC of 0.196 a half-hour later. He would likely, at a minimum, slur his speech and have lose his balance at 0.196, and would more likely be stumbling and near the point of blackout. The BAC level might be admissible at trial as evidence (Pennsylvania law isn’t clear on that), but even if not, there’s other evidence of intoxication to prove liability against the bar. Finally, although it appears the bar won’t face criminal charges, the absence of a criminal conviction doesn’t have any effect on a later civil lawsuit.]

The accident was just after 2am, when the liquor licensees close. Let’s assume for the moment that Dunn was “visibly intoxicated” and thus improperly served more alcohol or that, at a minimum, he was too impaired to drive. What would that mean for his Hartwell who, the bar’s insurance company will say, “willingly” got in a vehicle with a drunk individual known for his risk-taking behavior?Continue Reading Did Ryan Dunn’s Passenger Assume The Risk Of Riding With A Drunk Driver?

[Update: this post was from the primary in May, but I’ve seen a steady stream of traffic to it recently with the election coming up. Here’s my updated guide for the election itself in November.]

In the majority of civil lawsuits and criminal prosecutions, there is only one judge who ever matters: the trial judge. Because most lawsuits and prosecutions occur on the state, not federal level, that means that, for most Philadelphia residents, they will only ever have their rights enforced by one person: a Philadelphia Court of Common Pleas Judge.

Sure, our legal system has a lot of checks and balances, including the right to appeal the decisions made by a trial judge in a civil or criminal case reviewed by a panel of independent judges, but that right is for most people only theoretical. In practice, appeals are the exception, not the norm. Most civil cases settle. Most criminal defendants who stage a defense nonetheless enter into a plea bargain. Even on appeal many of the key decisions, from discovery in civil cases to evidentiary rulings in criminal prosecutions, are left to the trial judge’s discretion.

That’s a long way of saying: Philadelphia Court of Common Pleas Judges matter. Philadelphia is a strongly Democratic town, so the primary generally determines much of the election itself, but only a tiny fraction of the population votes in the primary, and those that do generally know almost nothing about the judicial candidates. Most of the winners of the Democratic primary tomorrow will likely win the election and become the next Common Pleas judges, which they will continue to be for at least ten years, likely longer, since judges tend to be “retained” every ten years by voters once they’re on the bench.

Pennsylvanians for Modern Courts has long been advocating for merit selection, but for now we still have elections, so let me help you out. Which judicial primary candidates should you vote for?

First, the Philadelphia Bar Association has put together a list of “recommended” judicial candidates:

The Commission on Judicial Selection and Retention is independent and non-partisan. It includes lawyers and non-lawyers. Among the members of the Commission are community leaders, officials including the Chief Public Defender, City Solicitor, and the President Judges of Common Pleas Court and Municipal Court, and representatives of minority legal groups and various sections of the Bar.

The ratings by the 30-member Judicial Commission follow extensive study and investigation by the Commission’s own 120-member investigative division, which includes 30 non-lawyer members. Candidates found “Recommended” satisfied a cumulative review of criteria including qualifications such as legal ability, experience, integrity, temperament, community involvement and judgment.

Here’s their print-out to take along when voting, which you can compare to the actual ballot list order. The bar for being “recommended” is high, but not too high. I don’t see why a person would vote for a non-recommended candidate unless they personally knew that candidate’s abilities and values.

But the PBA “recommended” far more than 10 candidates for nomination, leaving voters to decide among them. Pennsylvanians for Modern Courts has compiled some resources about the judicial candidates:

– SmartVoter.org, sponsored by the League of Women Voters.
– PA Vote Smart, a project of the Pennsylvania Bar Association.
– The Pennsylvania Bar Association Judicial Evaluation Committee recommendations for the Superior and Commonwealth Court elections.
– The Philadelphia Bar Association’s rating of candidates for the judicial primary.
– The candidates’ answers to five questions posed by the Editorial Board of the Philadelphia Inquirer.

In addition to those non-partisan sources, let me add to that two endorsement lists that might be of interested to certain types of voters, the Fraternal Order of Police Lodge No. 5 endorsements and the National Lawyers’ Guild survey of progressive lawyers on judicial candidates. Generally, the FOP will endorse candidates it perceives to be strong on “law-and-order” issues while the NLG survey respondents will favor candidates strong on civil liberties and equality issues.

Below the jump, I’ve taken the Philadelphia Bar Association’s recommended candidates, linked to what seemed to be the most authoritative website about them (usually their main website, but if I couldn’t find one then I would link to their Facebook page or their Inquirer questionnaire) and then cut and pasted what I thought was the most substantive information provided about them. Every judicial candidate says they want to be “fair” and “unbiased” — unless you know them personally (or know someone who does) the only real information we have to go on is their professional experience. A qualified judicial candidate should be able to describe, with some specificity, their professional interests and accomplishments.

Before the list, let me give a quick endorsement for the only candidate I’ve dealt with personally, Christopher Mallios, Jr., #111. He’s a former Chief of the Philadelphia District Attorney’s Family Violence & Sexual Assault Unit, is endorsed by the FOP, supported by NLG lawyers more than 3-to-1, LGBT friendly, and, most of all, a smart lawyer and a decent human being. I have no doubt he would make an excellent judge.

Below this line is the full list, with excerpts from their websites / questionnaires. If you know of a better source than the one I linked to or quoted, please shoot me an email and I’ll update the post.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * Continue Reading Philadelphia Judicial Primary Candidates 2011 – A Short Guide

We personal injury lawyers see some recurring fact patterns, particularly for the spinal cord and brain injury cases. The fatigued tractor-trailer driver driving beyond the FMCSR hours. The fully loaded passenger van rollover. The scaffolding collapse at a construction site. Commercial vehicles and equipment drive our modern economy, but they do so with more than enough force to maim or to kill if not used carefully.

But nothing beats alcohol, the “social lubricant,” which can turn even the most mundane situation into a crippling or fatal tragedy. Cars, guns, and bodies of water are inherently dangerous anyway — for any given American, their lifetime odds of dying from one of the three are, respectively, 1-in-100, 1-in-325, and 1-in-9,000 — and the addition of alcohol exponentially increases the likelihood of accidents, shootings, and drownings. A mind-numbing (and soul-numbing) number of our cases involve, in one way or another, the use or abuse of alcohol.

Which brings us to the subject of today’s post:

East Hempfield police said Hershey, a salesman at Imports of Lancaster County, East Petersburg, had taken the Jensens on a test drive when he told Tyler Jensen to pull over so he could show him “how it’s done.” Witnesses estimated Hershey was traveling as fast as 90 mph on the two-lane road when a truck pulled into his path and he swerved and hit an embankment, according to the affidavit filed in the case.

The car rolled several times, ejecting Hershey and the elder Jensen, who sustained severe head injuries and died at the scene.

…

According to the affidavit filed in the case, Hershey admitted to drinking Bacardi rum prior to the crash. His blood-alcohol level at the time of the accident was .06, below the legal limit of .08, said police. He also tested positive for marijuana.

It’s a horrible story, told in excruciating detail by the article. Hershey is rightfully facing criminal charges, and the car dealership is rightfully facing a civil lawsuit for, among other problems, negligently hiring an individual who “was charged with drunken driving twice in 2002, according to court records,” who before then “pleaded guilty to ‘exceeding the maximum speed limit established by 28 mph,’” and who had separately “pleaded guilty to careless driving and following too closely.” That’s not the person you entrust with the test drives.

Let’s put that aside, and put aside the marijuana, too. (Not least since “tested positive” means he used some amount of marijuana at some point in the recent past, not that he was driving under the influence of marijuana at the time.)

Continue Reading Proving Intoxication In Auto Accident Lawsuits Despite Legal Blood-Alcohol Levels