Washington DC Injury Lawyer Blog

Washington DC Survey Shows Increase in Distracted Driving

May 22, 2012 | Lebowitz & Mzhen

As cell phones become more of a necessity in everyday life, they also pose a threat to road and highway safety. Distracted driving, meaning driving with only partial attention to the road because of a cell phone or other communications device, rivals drunk driving as a threat to public safety. Although the total number of injuries and deaths attributable to distracted driving has decreased in recent years, the number of drivers who admit to driving while talking or texting on a cell phone has risen. Distracted driving plays a role in as many as one in four automobile accidents nationwide. A fatal car accident in Connecticut has focused the nation’s attention on the issue of driving distraction, leading to new educational campaigns and legislative efforts.

The District of Columbia joins thirty-one U.S. states in banning the use of handheld cell phones by all drivers. D.C. and thirty-eight states ban writing or sending text messages while driving, and the District bans learner’s permit holders from all cell phone use while driving, including use of a cell phone with a hands-free device like a headset. School bus drivers are similarly prohibited from all cell phone use while working.

An accident in Norwalk, Connecticut on March 24, 2012 has put a national spotlight on distracted driving. A 16 year-old girl, who was allegedly using a handheld cell phone, struck and killed a 44 year-old jogger. Connecticut has strict prohibitions on use of cell phones by novice drivers and drivers under the age of eighteen. The girl now faces multiple criminal charges, including negligent homicide with a vehicle and violation of the cell phone ban. The jogger’s father blamed the accident on the girl’s “stupidity” and has expressed support for a total ban on cell phone use, including hands-free devices, while driving. Currently, no state bans all cell phone use. The District of Columbia, for example, may allow adults to use a cell phone with a hands-free device.

Football Player Who Suffered Severe Head Injury Settles Lawsuit Against School District for $4.4 Million

May 16, 2012 | Lebowitz & Mzhen

A former high school football player, Scott Eveland of San Marcos, California, has settled his lawsuit with the school district over a head injury he sustained in a 2007 game. The injury has left him confined to a wheelchair, able to speak only through the use of an iPad or computer keyboard.

The issue of traumatic brain injuries in football has gained attention in recent months, with multiple lawsuits seeking damages from both athletic organizations and equipment manufacturers. Eveland had previously settled a products liability claim against the helmet manufacturers, and the remainder of the case focused on the liability of the school’s coaching staff.

Eveland was a senior at Mission Hills High School in San Marcos, located north of San Diego. He played linebacker for the varsity football team. According to the lawsuit, on September 14, 2007, he went to the athletic trainer to ask to sit out the first quarter because of a headache, which he claimed was so bad he could not focus his eyes. Eveland had already reportedly missed parts of practice due to headaches. The trainer went to the head coach who told the trainer, according to a student trainer who claimed to have witnessed the exchange, “You aren’t a [expletive] doctor,” and that the coach would decide who would play in the game. Both the trainer and the coach denied having this discussion in their depositions.

The Death of a Young Baseball Player and the Lack of Statistics on Youth Sports Injuries

May 10, 2012 | Lebowitz & Mzhen

The tragic death of a 12 year-old Chicago-area boy in a baseball-related accident has brought attention to a lack of data tracking regarding sports injuries in children. Although researchers have extensively catalogued injuries in athletes at the high school level and up, no one is collecting information on injuries to younger athletes. Sports can be a cause of serious injuries in children, so having access to information and statistics could help not only parents, but equipment manufacturers assess risks and develop safer products.

A 12 year-old boy from Oswego, Illinois, Eric Lederman, died in April from an injury caused by a baseball hitting him in the neck. Lederman was playing catch with a teammate on the side of the field while warming up for a game on Thursday, April 12. The ball struck him in the neck, reportedly hitting his carotid artery. He immediately collapsed and was taken to the hospital. He was pronounced dead at the hospital just after 8:00 p.m. The cause of death was determined to be a cerebral hemorrhage caused by blunt-force trauma, and was declared an accident.

Improvements in Auto Racing Safety Mean Fewer Accidents, Less-Satisfied Fans

April 27, 2012 | Lebowitz & Mzhen

NASCAR races around the country have gone a remarkably long time without a serious crash. Some races have recently gone hundreds of laps without even a yellow caution flag, which requires drivers to exercise caution or slow down due to a hazardous condition on the track. Some observers have credited new technologies, including improvements in aerodynamics, with fewer crashes and, therefore, fewer injuries. At the same time, fans report discontent with the situation, and attendance has declined. While improvements in safety and a reduction in racing car accidents would seem to be a favorable goal, the Associated Press went so far as to call it a “fan’s nightmare.”

The AP reported last week that racers at NASCAR’s Sprint Cup had gone more than nine hundred miles without a crash. Out of the last four Sprint Cups, three were entirely free of accidents. Overall, races have had a third fewer caution flags compared to last year. All of the recent crashes reportedly occurred at one race at Martinsville Speedway in Virginia on April 1. Fans have reportedly reacted by staying at home in droves, and by complaining loudly when they do show up. The stands at Bristol Motor Speedway in Tennessee, for example, were reportedly half-empty for the race on March 18. All of this led champion racer Jimmie Johnson to note something that may have already been obvious to many fans and observers: that crashing is more important than racing for some NASCAR fans.

Racing observers have cited both technological changes and a self-perpetuating safety trend as possible causes for the recent bout of green flags, which signal safe track conditions. According to USA Today, one driver said that cautions sometimes “breed more cautions” by slowing down the overall pace and giving cars fewer chances to crash. This could mean that, over time, the amount of crashes will return to the expected level, but other factors may be in play as well.

Utah Supreme Court Allows Claims Against Doctors for Third-Party Injuries

April 20, 2012 | Lebowitz & Mzhen

The family of a woman killed by her husband can sue the husband’s doctor, the Utah Supreme Court held in February. In B.R. and C.R. v. West, et al, the children of Kristy Ragsdale sued the doctor and nurse practitioner who treated the children’s father, David Ragsdale, alleging that the mixture of medications they prescribed caused a deterioration of David Ragdale’s mental state that led to Kristy Ragsdale’s murder. The trial court ruled for the defendants, finding that no doctor-patient relationship existed between the plaintiffs and the defendants. The Supreme Court overturned the verdict, which could significantly impact medical practices all over the country. Some states already hold doctors liable for certain third-party injuries, but the question remains open in many situations.

David Ragsdale was a patient of Dr. Hugo Roeder and nurse practitioner Trina West at a clinic in Draper, Utah. According to the court’s opinion, West prescribed six or more medications for Ragsdale, under Roeder’s supervision. These included psychotropic drugs like Concerta, Valium, Paxil, and Doxepin; and the steroids pregnenolone and testosterone.

Ragsdale and his wife were reportedly estranged during this time, and she had petitioned for a restraining order against him. West reportedly modified Ragsdale’s drug regimen in November or December 2007, after he told her about the divorce and restraining order. While Ragsdale had all of these drugs in his system, he shot and killed Kristy Ragsdale the morning of Sunday, January 6, 2008 in their church parking lot. He pleaded guilty to aggravated murder in 2009 and will serve at least thirty years in prison. Although Ragsdale took responsibility for the killing, he said he does not believe he would have done it but for the medications.

The Ragsdales’ children, identified only as B.R. and C.R., were only four and nineteen months old at the time of the murder. Their conservator, William Jeffs, filed a lawsuit in 2010 against Roeder and West for medical malpractice in prescribing medications with alleged risks of psychiatric side effects. The trial judge dismissed the case in February 2011 on the grounds that the plaintiffs lacked standing because they were not patients of Roeder and West. The Supreme Court agreed to hear the case directly, bypassing the appellate courts. It ruled in February 2012 that the defendants have a duty to nonpatients “to exercise reasonable care in the affirmative act of prescribing medications that pose a risk of injuries to third parties.”

DC Council Considers Bill Extending Statute of Limitations for Wrongful Death Claims

April 12, 2012 | Lebowitz & Mzhen

A bill pending in the District of Columbia Council would extend the statute of limitations for filing a Washington DC wrongful death lawsuit. Known as the “Wrongful Death Act of 2012” (WDA), the bill would change the statute from one year to two years. Councilmembers Phil Mendelson and Marion Barry introduced the bill on March 6, 2012. The bill has been referred to the Council’s Judiciary Committee and is awaiting a hearing. The Office of the Chief Financial Officer, in a letter dated March 19 (PDF file), confirmed that sufficient funds are available through fiscal year 2015 to allow the bill’s implementation.

According to the Blog of Legal Times, an attorney struggling with the tight time constraints of a one-year statute of limitations proposed the bill to Councilmember Barry’s office. Tennessee is reportedly the only other jurisdiction in the United States with a one-year statute of limitations for wrongful death claims. Subject to certain restrictions, Maryland has a three-year statute, and Virginia’s is two years. DC’s one-year statute dates back to the late 19th century.

The District of Columbia Official Code, in Section 16-2702, requires a claimant to bring a wrongful death lawsuit within one year from the date of death. From the standpoint of a personal injury attorney preparing a case for litigation, this does not allow a great deal of time to investigate the facts of the case and develop legal theories of negligence and liability. A wrongful death claim is essentially a claim for negligence, in which the injuries asserted include both the decedent’s death and the claimant’s loss of the decedent’s income, support, and companionship. These damages can be very difficult to evaluate and prove, particularly with a short time limit.

One lawsuit mentioned in relation to the WDA and the relatively brief time period to file a wrongful death claim is Nardyne Jefferies’ claim against the District of Columbia for the death of her daughter, Brishell Jones. Jones was murdered on March 30, 2010 in a mass shooting on South Capitol Street that left three people dead and six wounded. One year to the date after the shootings, Jefferies filed her wrongful death suit.

Jefferies’ lawsuit names the District of Columbia and various agencies and officials as defendants. Because the shooters were known to the DC criminal and juvenile justice systems, the lawsuit alleges that the government should have known that they posed a danger to public safety. Jefferies alleges fourteen separate counts, including several negligence-based counts, alleged violations of District and federal statutes and regulations, and violations of constitutional due process and equal protection. the defendants removed the case to federal court in June 2011, where it is pending in the U.S. District Court for the District of Columbia.

Families of Virginia Tech Shooting Victims Win Trial but Face Cap on Damages

April 6, 2012 | Lebowitz & Mzhen

The families of two women killed during a 2007 shooting rampage on the Virginia Tech campus received a jury award of $4 million each in their claims against the university for negligence. The jury found that the university negligently delayed warnings about Seung-Hui Cho, who had shot and killed two people in a campus dormitory two-and-a-half hours before embarking on the deadliest shooting spree in modern American history. Cho ultimately killed thirty-two people before turning a gun on himself. The university, backed by the Commonwealth of Virginia, is now asserting a state law that caps damage awards against the state at $100,000, as the families fight back.

Cho was a 23 year-old undergraduate student at Virginia Tech with a history of mental illness and “abnormal behavior.” His shooting spree began at about 7:15 a.m. on April 16, 2007, when he killed two students on the fourth floor of a high-rise dormitory. Cho then reportedly spent approximately two-and-a-half hours re-arming himself and mailing a package a photographs and documents to NBC News. At about 9:45 a.m., he went to a classroom building across the campus where he shot dozens of people, killing thirty, over the course of nine minutes. Cho then committed suicide when police breached the building.

Virginia Tech soon faced accusations that it negligently failed to warn students and staff after the first two murders, which allowed Cho’s rampage to proceed almost unimpeded. Police initially thought the first two deaths resulted from a “romantic dispute.” The university sent an e-mail to students and staff advising them to be cautious more than two hours later, roughly twenty minutes before Cho’s second attack began. Multiple negligence and wrongful death lawsuits followed.

The families of twenty-four of Cho’s victims, as well as eighteen people injured by the shootings, settled with the state in 2008 for $11 million. Several families refused to settle, and two of them recently went to trial.

In March 2012, a trial took place in a courtroom in Christiansburg, Virginia for the families of two victims, Erin Peterson and Julia Pryde. The university repeated many of its defenses, maintaining that officials believed Cho had fled the campus after the first two shootings, and that they did not connect the two series of shootings until later. The jury, after deliberating for just over three hours, returned a verdict finding that Virginia Tech officials were negligent in delaying warnings about the first two shootings, and that this delay directly contributed to the victims’ deaths. It awarded $4 million to each family .

FDA Wants to Investigate “Inhalable Caffeine” Further

March 30, 2012 | Lebowitz & Mzhen

A new product, described as “inhalable” or “breathable” caffeine, has drawn the attention of the U.S. Food and Drug Administration (FDA) due to questions about its safety and suitability for the marketplace. This is due partly to recent incidents involving injuries and deaths allegedly caused by high-caffeine energy drinks, as well as the mixture of caffeine-containing energy drinks with alcohol. The apparent popularity of these products among college students and other young people is also a cause for concern.

“Breathable caffeine,” currently marketed as the AeroShot, reportedly contains 100 milligrams of caffeine in a single “shot.” This is roughly the same amount of caffeine contained in a large cup of coffee. The device resembles an asthma inhaler. The owners of the company that produces the AeroShot state in interviews that the product is not intended for anyone under the age of 18, nor should it be mixed with alcohol.

The FDA’s concerns primarily involve the labeling of the product in regards to whether consumers should inhale, drink, or eat it. In a letter sent to the company on March 5, the FDA notes that product labels and the website prominently describe the product as “breathable.” At the same time, other statements and materials describe it as “ingestible,” and refer to it as a “dietary supplement.” FDA regulations require clear labeling of a product as either “breathable” or “ingestible.” A “breathable” product cannot be described as a “dietary supplement.”

The FDA also expresses concerns about consumer safety in the absence of clear instructions about inhalation versus ingestion. If the product is intended for inhalation, ingestion could be dangerous, and vice versa. Very little research exists on the safety of inhaled caffeine products, which also worries the FDA.

Finally, the FDA notes concerns about the intended age of the product’s consumers and warnings about its use in combination with alcohol. While the company states that no one under 18 should use the product, some materials allegedly state the minimum age as 12. Marketing materials describe using the product when, for example, “study[ing] in the library,” an activity the FDA notes is most common among children and young adults. Publicity around the product featured on its website describes its use with alcohol as a “party drug.” This, according to the FDA, contradicts the company’s message that it should not be mixed with alcohol.

NHTSA Delays Decision on Backup Cameras in Cars

March 22, 2012 | Lebowitz & Mzhen

The National Highway Transportation Safety Administration (NHTSA), an office within the U.S. Department of Transportation, has delayed a final rule regarding rear visibility requirements in cars. This is the second delay of the rule since the agency began working on it. The purpose of the rule would be to prevent “backover” accidents due to a driver’s inability to see people or objects behind the vehicle. The Secretary of Transportation has said that they expect to have final standards ready by the end of 2012.

The rule is required by the Cameron Gulbransen Kids Transportation Safety Act of 2007, passed by the U.S. Congress in early 2008. This law addresses several child safety concerns, including the risk to children of vehicles moving in reverse where the driver cannot see the child. It is named for a two year-old child who died when his father accidentally backed his car over him in their driveway. According to the NHTSA, 292 deaths and 18,000 injuries result each year from “blind zones” behind vehicles. The majority of the fatalities involve light vehicles, meaning those weighing 10,000 pounds or less. Those most vulnerable to these kinds of accidents are children and the elderly. In addition to addressing visibility issues, the law requires rules for auto-reverse in power windows and transmission systems that prevent cars from easily shifting out of “park.”

The proposed rule would require additional mirrors or even camera devices to enable drivers to see the area behind the vehicle while driving in reverse. In December 2010, the NHTSA announced that it expected to require new passenger cars, minivans, pickup trucks, and other vehicles to have “rear mounted video cameras and in-vehicle displays” to allow an expanded field of vision for drivers.

The New York Times reportedly found that backup cameras are already standard issue in forty-five percent of new vehicles, and that they are available as an option in twenty-three percent. For all other vehicles, owners would have to purchase cameras. The NHTSA reportedly estimates that, for vehicles without an embedded navigational screen, the cost to a vehicle owner would be between $159 and $203, and between $58 and $88 for cars with a screen already installed. The total annual cost for the country would be between $1.9 and $2.7 billion.

Secretary of Transportation Ray LaHood announced in February that the NHTSA would need to do further research before formally issuing the new rules. The rule has also proven to be controversial politically, considering the large price tag attached to it. The controversy persists even though it was actually President Bush who signed it into law in 2008. Bloomberg Businessweek says that it is among the five most expensive regulations still pending in the Obama administration, and it is one of many facing delays.

BP Settles Lawsuit Related to 2010 Oil Platform Explosion

March 15, 2012 | Lebowitz & Mzhen

BP, Transocean, and several other companies have settled lawsuits with some of the individuals injured in the April 2010 explosion in the Gulf of Mexico that killed eleven people and caused one of the worst oil spills in history. The companies have also settled some of the claims pending between the various businesses involved with the drilling operation. Still, the situation is a mess of competing claims and lawsuits that may take years to unravel, as injured plaintiffs seek to separate their claims from several thousand consolidated claims for damages.

The Deepwater Horizon drilling rig, owned by Transocean and operated by BP, was a deep water rig positioned in the Gulf about 48 miles south of the Louisiana coast. It had drilled the deepest oil well in history, at more than 35,000 feet, in late 2009, and at the time of the explosion was drilling in an area called Mississippi Canyon Block 252. The explosion occurred on April 20, 2010, when a blowout, typically the result of a failure in pressure control systems, killed eleven workers on the rig and created a fireball visible for miles. The rig sank, while the well, located over 4,000 feet underwater, continued gushing and caused the massive oil spill.

A crew of 126 people was on the rig at the time, including a visiting group of Transocean and BP executives. Nearly all the survivors suffered injury. The person with the worst injuries, according to Bloomberg, is Buddy Trahan, a Transocean executive who suffered twelve broken bones when the explosion threw him thirty feet through a wall and buried him under rubble. A crew member freed him from the wreckage and found that a door hinge had nearly pierced his carotid artery. Trahan and numerous other individuals sued BP and other companies for negligence. Businesses and individuals affected by the explosion, including fishermen and tour companies, also have claims pending. State and federal governments have claims against various companies for damages and regulatory infractions.

The injury and wrongful death lawsuits have been delayed by disputes between BP, Transocean, and other companies over liability for the explosion itself and various property damage claims. Transocean recovered for the total loss of the rig, but other companies lost equipment as well. BP has made claims against manufacturers whose equipment may have caused or contributed to the explosion. The court consolidated several thousand claims for property damages and other economic injuries with the personal injury claims in order to facilitate pretrial processes. Around twelve personal injury claims are still pending.

One worker injured in the explosion, Oleander Benton, settled her federal lawsuit against BP, Transocean, and others. Benton asked a U.S. district judge in New Orleans to dismiss the suit in February. She had sought $5.5 million in compensation for her injuries, but the exact details of the settlement have not been disclosed.