Washington DC Injury Lawyer Blog

Washington DC Dentist Warns of Dangers of Sports Injuries

December 14, 2011 | Lebowitz & Mzhen

A Washington, DC-area dentist recently warned about the importance of protecting children’s teeth and jaws from injury as they participate in fall and winter sports, noting the potential for serious damage and complications from fairly common sports injuries. The dentist, of course, recommends obtaining a custom-made mouth guard with the assistance of a dental professional. His advice demonstrates the importance of ensuring safe and reliable protection for children (and adults) who participate in sports, whether the protective device is store-bought or professionally-made.

Sporting goods stores and other retailers sell a variety of protective equipment, including mouth guards, pads, and braces. Almost any of these types of equipment are also available custom-made from medical professionals. The recent article focuses on mouth protection, but its advice applies to protection for the head, limbs, back, and more. Manufacturers of products offered for sale to the public have a duty to take reasonable steps to ensure that their products are fit for their advertised use.

Consumers, under the legal theory of products liability, may be able to recover damages from the manufacturer of a product if that product causes them injury in certain circumstances. A manufacturing defect could be any sort of flaw occurring during the production of a product that makes it unsafe. A design defect is a problem inherent in the product that would have occurred before the product was ever produced or assembled. A marketing defect refers to the advertising of a product for some improper use. Any of these defects could cause an injury to a consumer, and could entitle the consumer to compensation for injuries.

Medical professionals, by virtue of their education, training, and unique position of responsibility to their patients, have a very high duty of care. Producing customized protective equipment for athletes places them into a position of responsibility for the design, manufacture, and marketing of these products. They therefore bear some potential liability for customized equipment along with the actual manufacturers.

The Consumer Product Safety Commission (CPSC), an agency of the federal government, monitors the safety of consumer products, issuing recalls for products it deems sufficiently unsafe. It enlists the cooperation of the manufacturers themselves when possible, but it has the legal authority to order a recall when necessary. The CPSC maintains records of recalls it has ordered or requested, organized by market segment. It has issued multiple recalls for sports equipment, including safety equipment for both adults and children, such as:

– Football helmet chin straps due to “laceration hazard,” November 3, 2011
– Ski helmets due to “head injury hazard,” July 21, 2011
– Baseball and softball gloves due to “presence of mold,” July 6, 2011
– Bicycle helmets due to “head injury hazard,” May 31, 2011
– Lacrosse gloves due to “violation of lead paint standard,” July 26, 2010

NTSB Issues Findings on Deadly 2010 Gas Pipeline Explosion

December 8, 2011 | Lebowitz & Mzhen

The National Transportation Safety Board (NTSB) recently released its report on a deadly gas pipeline explosion that ravaged a neighborhood outside San Francisco and killed eight people last year. The NTSB, after reviewing data and testimony presented at a meeting in August and over a year-long investigation, concluded unanimously that fault for the explosion lies with Pacific Gas & Electric (PG&E), one of the largest gas companies in the country. The 140-page report issued by NTSB contains thirty-nine safety recommendations directed not only at PG&E, but also pipeline operators and government regulators. Lawsuits related to the explosion are also preparing for trial next year.

The accident occurred in the early evening of September 9, 2010 in the San Francisco suburb of San Bruno, when a ruptured natural gas pipeline owned by PG&E exploded with sufficient force to make some first responders, residents, and media think an earthquake or plane crash had just occurred. The explosion caused a fire that destroyed thirty-five houses and damaged many more. Three more homes were later deemed too badly damaged and were demolished. The blast created a crater 72 feet long, 26 feet wide, and 40 feet deep. In all, eight people, mostly neighborhood residents, died in the explosions or from burns.

The NTSB’s report describes a “litany of failures” by PG&E and failures in oversight by government regulators, according to a Bloomberg report. It says the problem began over 50 years ago, when PG&E installed substandard pipe with poor welding, then subsequently failed to conduct tests and inspections that would have identified problems in advance. It further blames an inept response by PG&E for the severity of the destruction. PG&E control room operators allegedly did not relay information on the source of the fire to emergency responders or 911 operators, causing responders to still think they were dealing with a plane crash. The absence of emergency shut-off valves on the pipeline also allegedly prolonged the fire considerably.

PG&E’s problems with pipeline explosions do not end with the San Bruno incident. The California Public Utilities Commission approved a record $38 million fine against the company last week for a Christmas Eve 2008 explosion in Rancho Cordova, outside Sacramento. That blast killed one person, injured five, and destroyed a house. A utility employee and a firefighter were among the injured. The fatality was the elderly owner of the destroyed home. The owner’s family reached a confidential settlement with PG&E in 2009. An investigation found that, during a repair in 2006, PG&E installed the wrong kid of pipe in the gas line. It also found that PG&E responded too slowly to a report of a leak the day of the explosion.

Government Settles Lawsuit over 2001 Anthrax Attacks

November 30, 2011 | Lebowitz & Mzhen

The federal government has agreed to pay $2.5 million to Maureen Stevens, a resident of Lantana, Florida, to settle her lawsuit arising from the 2001 death of her husband, Bob Stevens, in the anthrax attacks that occurred in various cities that fall. The $50 million lawsuit claimed negligence by the government for failing to prevent the attack that killed her husband, citing evidence that a government insider obtained the spores used in the attacks from an Army lab. A settlement was first announced in October, but details only recently became public.

The anthrax attacks occurred in the fall of 2001, a few weeks after the terrorist attacks of September 11. Bob Stevens was a 63 year-old photo editor at American Media, Inc. in Boca Raton, Florida, the publisher of the National Enquirer and other tabloids. He died on October 5, 2001, a few days after opening a letter addressed to the publisher that had been laced with anthrax spores. Bob Stevens’ death was the first of five resulting from similar letters.

Maureen Stevens filed her lawsuit in a Florida federal court in 2003, claiming $50 million in damages for her husband’s death. She alleged that the government negligently failed to secure anthrax spores at the laboratory where they originated, the Army Medical Research Institute of Infectious Diseases at Fort Detrick, Maryland. She claimed that the Institute had a history of failing to track pathogens and of missing microbe samples dating back to at least 1992. In essence, she alleged that the government had a duty to adequately safeguard dangerous pathogens in its possession, particularly ones known to be deadly to humans, and that the government breached its duty by allowing anthrax spores to fall into the hands of the perpetrator of the attacks. This led directly to Bob Stevens’ wrongful death, according to her lawsuit.

The Justice Department, arguing on behalf of the government, disputed her allegations. It claimed that she failed to prove a direct causal connection between the government’s actions, even its lack of security precautions, and Bob Stevens’ death. The Justice Department at one point unsuccessfully argued to the Florida Supreme Court that the government could not be held liable even if it had allowed the release of dangerous materials. Discovery in the case led to many revelations about security at the Maryland research site and the role of various government employees and officials. Only some of these have become public. The case was set for trial in January 2012 when the settlement was announced.

Jury Awards $9 Million to Couple in Medical Malpractice Lawsuit

November 17, 2011 | Lebowitz & Mzhen

A jury in a federal lawsuit in Cheyenne, Wyoming has awarded $9 million to Louis and Rebecca Prager. The suit against Campbell County Memorial Hospital in Gillette, Wyoming and Dr. Brian Cullison alleged medical negligence during treatment of Mr. Prager in 2008, leading to permanent disabilities. The award may be the largest medical malpractice verdict in Wyoming history.

Prager, an oil field worker, was involved in a rollover accident on December 9, 2008, when the truck he was driving for his employer went off the road in icy conditions.. An ambulance crew immobilized him on a backboard, placed a neck brace on him, and rushed him to the emergency room at Campbell County Memorial Hospital. According to the lawsuit, despite complaints of neck pain, Cullison released Prager without examining him, taking x-rays of his neck, or providing him with a cervical collar.

Prager, 51 years old at the time, returned to the hospital four days later after losing the use of his left arm and shoulder. The hospital found multiple fractures to his cervical spine and performed emergency neck fusion surgery. The surgery prevented any further injury, but could not repair the nerve damage. He has since had a second neck fusion operation and will probably require more in the future. He has also undergone several procedures aimed at reducing his pain. He has been unable to work since the accident.

Prager’s lawsuit alleged that Cullison’s failure to diagnose his broken neck led to permanent C5 nerve root injuries, and sought to hold the doctor and the hospital liable for his expenses, pain and suffering, and future costs. Defense attorneys argued that Prager’s pain and loss of use of his arm resulted from a progressive shoulder injury, not the failure to diagnose the cervical injury. After a nine-day trial in October 2011, the jury determined that the negligence of the hospital and doctor caused Prager $7 million in damages. They awarded an additional $2 million in damages for loss of consortium to Prager’s wife, Rebecca. “Loss of consortium” damages relate to the loss of companionship and support suffered by the spouse or partner of an injured plaintiff. According to the Casper Star-Tribune, this is the largest medical malpractice award in the state’s history, beating the previous record of $1.5 million by a wide margin.

Family of Shooting Victim Sues Gunman for Wrongful Death

November 11, 2011 | Lebowitz & Mzhen

The parents of Michelle Fournier, a woman killed in a hair salon shooting that left eight people dead and one wounded, have filed a wrongful death lawsuit against the alleged shooter. The alleged gunman, Scott Dekraai, is Fournier’s ex-husband. The lawsuit asks the court to freeze Dekraai’s assets. According to the family’s attorney, their goal is to obtain compensation for Fournier and Dekraai’s eight year-old son, who is left effectively orphaned by the incident.

The family of another woman killed in the salon, Christy Wilson, has also filed a lawsuit for wrongful death against Dekraai. Her husband alleges in the suit that she “lingered for a ‘significant’ period of time before she died,” and seeks compensation for hospital and funeral costs and loss of “love, care, companionship.” The two lawsuits will likely proceed alongside, but independent of, the criminal prosecution.

Dekraai had taken Fournier to court to modify their child custody arrangement, hoping to get more time with their son. A court-appointed psychologist recommended that the court keep the existing custody plan in place. On October 12, 2011, Dekraai allegedly drove to the salon in Seal Beach, California where Fournier worked, armed with three handguns and wearing a bulletproof vest. According to police and Dekraai’s own statements to police, he shot eight people in the salon, killing seven, including Fournier and Wilson. He then shot and killed a man sitting in a car in the parking lot, telling police later that he thought the man might be a police officer reaching for a weapon.

Police arrested Dekraai shortly after he left the salon. He reportedly offered a full confession to investigators, admitting to all of the shootings and offering explanations for his actions. Prosecutors have charged Dekraai with eight counts of murder and one count of attempted murder, one for each shooting victim. They have announced that they will seek the death penalty. His arraignment is scheduled for November 29.

There are several key differences between the criminal and civil ases. The claims brought by the families for Fournier and Wilson seek civil damages for wrongful death. The criminal case, brought by prosecutors who work for the state of California, seek to punish Dekraai in the criminal justice system. The desired outcome of a wrongful death lawsuit is always monetary damages, while a criminal prosecution seeks fines, imprisonment, or sometimes the death penalty.

Players Sue NFL and Helmet Manufacturer over Head Injuries

November 3, 2011 | Lebowitz & Mzhen

Football, as the saying goes, is a contact sport. It may therefore come as a surprise to learn that a number of professional football players have sued the National Football League and helmet manufacturer Riddell over concussions suffered during games. In all, 125 former players have filed suit in at least five separate complaints, alleging that the NFL failed to properly warn players of the risks of head injuries and to provide support for retired players. Concussions in sports, particularly professional football, have received heightened scrutiny recently in both the media and in Congress, with many statistics suggesting that the number of concussions has increased significantly.

A concussion is a common type of brain injury caused by an impact with the head making the brain collide with the inside of the skull. This can lead to both physical and cognitive symptoms, ranging from headache and dizziness to disorientation and attention deficits. A person who suffers from a concussion may not lose consciousness, and many concussions go undiagnosed because the injured person does not realize the injury’s severity. Multiple concussions over time can cause significant brain damage, including memory loss and dementia. The NFL began to pay serious attention to concussions in 2009, and in February 2011 it announced new guidelines to gauge whether an injured player should continue to play.

The lawsuits consist of a class action suit and three personal injury suits in California state court and a case in a federal court in Pennsylvania. The suits essentially allege that the NFL has a duty to inform players of all risks reasonably associated with their job duties and to support players injured in the course of their job duties. In this situation, the players’ “job duties” involve practicing for and playing football. Lawyers for the players say that they hope to use the lawsuits to improve safety standards for all players, to prevent future injuries, and to get compensation for the players’ injuries.

To prevail on their claim, the players would have to prove that the NFL had knowledge of risks inherent in the game not available to an ordinary prudent person, and that the players did not assume the risk of injury by agreeing to play the game. An argument in the players’ favor, perhaps, is that they did not have the ability to refuse to perform certain job functions, since these would occur in the middle of games and players are contractually obligated to play.

Fight Over a Parking Space Allegedly Leads to a Fractured Spine

October 26, 2011 | Lebowitz & Mzhen

A Colorado man faces assault charges after a fight over a parking space outside a bagel shop on the morning of Saturday, October 1. According to an arrest warrant issued October 4, the victim suffered a fractured spine, head injuries, and multiple abrasions and contusions. The victim presented in court that day with a U-shaped wound on his forehead. The incident made news in part because the alleged assailant had returned from Pakistan a few months earlier, where he had worked as a contractor for the CIA and was involved in a shooting incident.

Police originally arrested the man on charges of third-degree assault. When it became clear that the victim suffered a broken vertebra, authorities raised the charge to second-degree assault. As of October 5, no charges were pending against the victim for any actions in the fight. The alleged assailant admitted to hitting the victim first, but claims that the victim also hit him five times. Colorado law defines third-degree assault in part as “with criminal negligence…caus[ing] bodily injury to another person by means of a deadly weapon” and classifies it as a class 1 misdemeanor. Second-degree assault is defined in part as “[w]ith intent to cause bodily injury to another person…caus[ing] such injury to any person by means of a deadly weapon” and classified as a class 4 felony. Reports on the incident do not indicate if police allege use of a weapon by the alleged assailant. The key difference between the two criminal charges is the required mental state of the accused, although the distinction for authorities appeared to be the extent of the victim’s injuries.

Spinal cord injuries, defined as any injury resulting from trauma, can have serious consequences for the victim. Effects range from incontinence or impaired mobility to full paralysis. Treatments for spinal cord injuries generally involved extensive rehabilitative therapy, as well as surgeries and pharmaceutical and psychological treatment. Obviously a long course of treatment becomes exceedingly expensive for the victim. While the diagnosis and treatment of spinal cord injuries has advanced over the years, severe injuries still carry little hope for full recovery. In addition to treatment and rehabilitation, victims must make substantial adjustments in their lifestyle and occupation.

Returning Veterans are at High Risk for Auto Accidents

October 19, 2011 | Lebowitz & Mzhen

Automobile crashes are the leading cause of death for veterans returning from deployment during their first year back home, according to the Department of Veterans’ Affairs (VA). Veterans returning from Iraq and Afghanistan face a 75% greater probability of a fatal car accident than the general population. This continues a historical trend, but at a greater rate than prior to the deployments of the past decade. The VA’s investigation suggests that military training, psychological effects of deployment, and possible injuries all play a role in unsafe driving among veterans.

Studies by the VA and the National Highway Transportation Safety Administration have shown that risky behavior accounts for many of the deaths. This includes not using seat belts or helmets, speeding, and driving under the influence of alcohol. Training in “aggressive driving” is one possible cause. People on deployment receive training for driving in combat situations, and must constantly contend with the possibility of ambush or improvised explosive devices. VA officials have described a sense of “invincibility” among many returning veterans, having survived combat, which can unwittingly lead to dangerous driving.

Psychological factors also play a significant role because of the highly stressful situations in deployment, particularly to Iraq and Afghanistan. Post-traumatic stress disorder, an all-too-common condition of returning veterans, can lead to dangerous driving back home. An Army study revealed that 50% of returning soldiers reported feeling anxiety on the road when other vehicles quickly approached them, and 20% reported feeling general anxiety whenever driving. The VA has further noted that auto accidents can lead to further PTSD, particularly in individuals already affected by PTSD or other mental health issues, which can create an ongoing problem for veterans involved in accidents.

Traumatic brain injuries can affect driving, causing a person to think they are driving normally and not noticing mistakes. Such injuries may go undetected in returning veterans, leading to unforeseen driving problems. Individuals suffering from brain injuries may not be able to recognize changes in their driving patterns, making safe driving difficult.

Food and Drug Administration to Take Action on Food Safety in Restaurants and Stores

October 13, 2011 | Lebowitz & Mzhen

The U.S. Food and Drug Administration (FDA) announced a series of initiatives in late September that it hopes will further ensure the safety of the food supply. The proposed measures, known as the Retail Food Safety Action Plan, would apply to food service establishments such as stores, restaurants, and schools. The Plan will focus on food safety rules at the state and local levels. It establishes a set of “model rules” to help managers in food service establishments handle food safety procedures, and standards for training personnel on food safety issues. The Plan follows a series of recent stories in the news about food contamination such as the recent cantaloupe recall.

The FDA is cooperating with the National Association of County and City Health Officials (NACCHO) to promote best safety practices at the local level. It hopes to get local governments to implement its Voluntary National Retail Food Regulatory Program, a series of standards developed by the FDA to encourage uniform food safety protocols nationwide.

The Plan also includes amendments to the 2009 Food Code, the most recent set of standards put out by the FDA. The Food Code is typically revised every few years. The proposed amendments include:
– Food establishments should have a plan for responding and cleaning up if an employee is phyiscally ill near where food is served, prepared, or stored.
– Food establishments should have clear standards about bare-handed contact with prepared food by employees.

– They should have consistent standards for how to display meat and poultry.

The FDA is an agency of the U.S. Department of Health and Human Services. It is responsible for promoting public health by supervising and regulating food products, pharmaceuticals, medical devices, cosmetics, and other products commonly used by the public. It also enforces various laws related to public health. It regulates safety for most food products, although many meat products fall under the Department of Agriculture’s jurisdiction. FDA review and approval is a critical step towards getting a product to market in the pharmaceutical and food industries.

Food safety and quality control are vital tasks in promoting public health and preventing certain diseases. Food-borne illnesses such as salmonella and E. coli can result from poor food quality or lack of standards. Injuries can be severe, ranging from sickness and lost time at work to serious hospitalization or death.

Children’s Jewelry Manufacturers Agree to Limit Cadmium Levels

October 7, 2011 | Lebowitz & Mzhen

The Consumer Product Safety Commission has approved new voluntary limits on cadmium levels in children’s jewelry. A move to regulate cadmium began in 2010 after a recall of bracelets and pendants at Wal-Mart stores. The new standards represent a national consensus among manufacturers and importers of children’s jewelry as to the need to address the toxic metal. A series of mandatory limits has already developed through state regulation and litigation, but this new standard represents the first national standard.

Cadmium is a metal element that occurs as a byproduct of various industrial processes. For years cadmium was used in steel and plastic production and as a pigment, but use has declined considerably. It is still used in some batteries and solar panels. Cadmium exposure has been linked to a number of health problems, including flu-like symptoms, acute kidney problems, pulmonary emphysema, bone disease, and possibly cancer. Dangerous exposure can occur even with trace amounts of cadmium.

Wal-Mart stores recalled children’s bracelets and pendants from their stores in January 2010 due to concerns that they might contain cadmium. Children could receive dangerous doses of cadmium if the jewelry were placed in a child’s mouth, even without actually swallowing the product. Some Chinese companies use cadmium in jewelry production because of prohibitions on using lead. An American company, Tween Brands, reached a settlement in California in March 2011 in which it has agreed to eliminate cadmium from all of its products by January 2012. The settlement agreement only applies to the state of California. Different standards among U.S. states may have led to repeated and inconsistent testing of products, which has led to the current push for national standards.