New Mexico Injury Attorney Blog

There was a recent New Jersey jury verdict of $18.5 million for a birth injury. The medical malpractice award was reported in The Star Ledger. Essentially, the jury issued the verdict after finding that a delay in a c-section delivery resulted in the child's cerebral palsy.

It is not uncommon to see very large verdicts in birth injury cases. The damages in these cases are significant. The child and the family could face a lifetime of medical expenses, assisted living, rehabilitation and so on. This is not cheap. In addition, the child will one day become an adult with absolutely no possibility of earning income. A lifetime of lost earnings will typically make up a big part of the damages award. Then of course there are damages for pain and suffering. Despite what many believe, these are often a small percentage of the overall award.

Again, the verdict itself is not that surprising in light of the damages. In reading the comments on the article, I was struck by the success of the tort reform movement in programming the public's response. In fact, most jurors come to the jury box with these same prejudices including a strong bias toward protecting the medical profession.

One comment suggested that "Life is never fair. Nothing guarantees a perfect life or entrance into it." Another suggested that these awards are the reason for high health insurance costs. Another suggested that patients buy their own insurance to protect against medical malpractice. Even the one that agreed with the verdict expressed horror that the attorney would be paid a percentage of the recovery.

Yes, life is not fair. But life should not be made dangerous by the acts of others, especially those entrusted with your care. And those that do cause harm should bear responsibility for their actions. Lawsuits are not the reason insurance is so high, insurance companies are the reason insurance is so high. The medical malpractice crisis is a myth. Medical malpractice claims have dropped dramatically over the last 10 years. A study by the Institute of Medicine, a part of the National Academy of Sciences, estimates that up to 98,000 people die each year as a result of medical negligence. The fact is far fewer lawsuits are brought than realistically should be to protect the public against these risks.

Numerous health insurance companies made record or near record profits in 2009. At the same time, many are raising premiums across the board. Think about that. They made record profits during the worst recession since the Great Depression and yet they are still raising rates. Is it really lawsuits that are driving insurance costs? Could it not be corporate greed?

And what about those greedy lawyers? Look again at the actual numbers on medical malpractice claims. There are very few medical malpractice lawsuits being filed just in relation to wrongful deaths associated with medical negligence. This does not even begin to address medical negligence that results in non-fatal injuries and illness, often permanent, caused by medical negligence. The fact is these are extremely hard cases for attorneys. They are extremely expensive to litigate. This is true even in clear cases of negligence where it is often the policy of insurance companies to deny every claim. In addition, these cases are lost at trial more often than they are won due to the benefit of the doubt given doctors. Attorneys that take these cases take on enormous risks. Without the fee in the end, nobody would take these cases. And injured patients and society would be forced to bear the costs of these errors.

To some, as indicated by the comments to the report of the verdict, it is far better for society to allow insurance companies to charge outrageous premiums to protect against a fictitious wave of medical malpractice lawsuits while having the patient bear all the risks. It is far better still that society and taxpayers should bear the costs of a lifetime of care for injured patients through Medicaid, Medicare and Social Security than for insurance companies to cover the losses for which they are paid to cover. The insurance companies after all are the true victims here. We should protect their margins.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

BP seems to be saying all the right things to the press. They acknowledge full responsibility for the accident and its clean up. They have indicated that they are putting every available corporate resource toward stopping the flow of oil and minimizing its impact on the environment. The company has even been generous enough to begin offering settlement agreements for damages to those harmed by the spill. If this sounds too good to be true coming from an oil company, it most definitely is.

While BP works the media and other public relations angles to project a responsible corporate actor, they have quite cynically, unethically, immorally, and arguably, fraudulently been attempting to extract cheap settlement agreements from fisherman and other businesses that will be harmed by what some are now saying could be an unprecedented environmental disaster. What is BP offering in its fit of generosity? Five thousand dollars in total settlement of all past, present and future claims for what may potentially be catastrophic loss of income to those affected by the spill. These efforts are so outrageous that it is reported that the Louisiana government has directed BP to cease circulating the settlement flyers. All those suffering losses have been advised to seek legal counsel before accepting any settlement offers from BP.

It might be suggested that this is just sound corporate behavior, trying to minimize losses to the company and its shareholders. It is and it points to the conflict between sound corporate policy, and public policy and individual rights. Many of these fisherman have already been shut down. Their loss of income alone may already exceed $5000.00. This does not even begin to reflect the future lost income, loss of way of life, loss of the enjoyment of the Gulf on which they have built their lives and their livelihoods. The effort to extract quick settlements is certainly predatory but by no means an unusual corporate response.

The Tea Party should have something to say here though I trust they will not. Let's say BP pays the full costs of the accident including the environmental cleanup, which is highly doubtful, who pays the other costs of the spill? Who pays for those fisherman, restaurants, tour operators and other businesses shut down by the spill along with all their now unemployed workers? Who pays for the increase in fuel costs, fish prices, other meat prices that will soar as a result of this catastrophe? What about the loss of tourism and related employment in a region still suffering from Katrina?

One way or another, the taxpayers will pay for the great bulk of the costs caused by BP's failures. All the while, BP is out front trying to gain settlements at pennies on the dollar from the immediate victims of the accident. It is very unlikely that BP will offer even a single nickel toward the indirect costs. And, once the lawsuits begin from those most harmed by the spill, they will bring their full corporate might and legal resources to fight every nickel of settlement of the direct harm, complaining all the way of the injustice of the American legal system that allows treacherous and greedy trial lawyers to prey on the vulnerable corporate benefactors of our society. And in a twist of irony or some might say hypocrisy, those most vocal about government spending, social programs, overreaching government regulation and so on will come to their defense.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

It was reported this week in the New York Times that New York City has agreed to a class action settlement in the amount of $33 million for individuals subjected to illegal strip searches following misdemeanor arrests. The strip searches lled to a Section 1983 suit for the plain violation of the 4th Amendment prohibitions against unlawful search and seizure.

Interestingly, it was reported that this is the 3rd such settlement in the last 10 years that the City has settled cases for illegal strip searches. The first such settlement came in 2001 for $40 million. The second came in 2005 for several million. Now once again, the City has settled for $33 million for essentially the same pattern of conduct.

In the first wave of cases, the illegal searches were conducted prior to intake at the department of corrections. The practice was found to be unconstitutional under the 4th Amendment in Shain v. Ellison and formed the basis of the original settlements. In response, the City's department of corrections apparently determined that the unlawful searches would become lawful in the event that they were conducted following intake and admission into the correctional facilities. Another 100,000 people were, even after the first two rounds of settlements, subjected to the same unlawful strip searches.

The $33 million settlement seems like a very large settlement and it is in total. However, each individual subjected to the illegal searches will receive on average only $2000.00 for having been subjected to the humiliation of strip searches which included cavity searches of both men and women, including menstruating women, despite the lack of any reasonable suspicion that the detainees carried unlawful weapons, drugs or other illegal contraband on their bodies. How much would you accept to be stripped nude and subjected to cavity searches for a minor infraction of the law?

In light of the financial and budgetary crises facing New York City, why might it have agreed to such a large settlement? Clearly, the compensatory damages alone for the 100,000 individuals subjected to the barbaric, inhumane and unconstitutional strip searches could have easily exceeded $33 million at trial. In addition, the City was facing possible punitive damages for the clear lack of effect the prior lawsuits had on the City's behavior. Punitive damages are intended to both punish and deter. In fact, the most valuable role that punitive damages serve for society is to deter future illegal, dangerous or reckless practices of both the defendant and others. It is hard to imagine a better case for punitive damages than here where the City, despite two prior class action lawsuits and settlements, had failed to change its policies regarding strip searches.

The lawsuit and the settlement is likely to cause a flood of ranting from the tort reform movement. When you hear these, keep in mind that those subject to the illegal searches had been charged with a vast array of misdemeanors including child support violations, petty shoplifting, jumping a subway turnstile, petty marijuana possession, and trespassing to name a few. Of course, tort reformers will find a way to justify the illegal search and seizures, or in the alternative, try to argue that such suits serve no useful purpose other than enriching trial attorneys while depleting the public coffers of the good folks in the department of corrections who saw fit to engage in these practices.

Ask yourself in response to their arguments, which society you wish to live in, theirs or one that respects the United States Constitution, and the rights of individuals including those of your children, family and friends that in the tort reform world would most certainly fall prey to abusive practices of government, corporations, insurance companies, manufacturers or others who regularly fail to appreciate the rights, safety and welfare of the public they serve.

www.CollinsAttorneys.com

It was announced last week that there has been a $657.5 million settlement to compensate around 10,000 workers harmed during the cleanup of Ground Zero in the 911 Terrorist Attack. Two obvious questions arise: Is it a fair settlement for the injured workers? Why the delay in settlement when the workers were obviously harmed during the cleanup?

The injured workers individual compensation will vary greatly depending on their injuries. Some will receive thousands while others may receive in excess of $1 million. Many of the injured workers have suffered severe and permanent physical injuries. Most of the injuries are respiratory in nature, the most common being asthma. Others have suffered from a variety of cancers, some of which have proven fatal.

There has never any doubt that these workers were injured as a result of the Ground Zero cleanup activities. In fact, the federal government set up a $1.1 billion dollar fund which was and remains available to handle these claims. So why did it take so long to settle these claims?

Plaintiff's trial lawyers get knocked around a lot in the media. They are an easy and popular target for politicians of every stripe. But what about the defense trial attorneys? It takes 2 to tango as they say.

The New York Times reported that the insurance company for the City of New York handling these claims, the WTC Captive Insurance Company, paid attorneys $200 million in legal fees to defend against these claims. The plaintiff's trial attorneys are already taking heat for their fees and the judge is looking at knocking them down by 50% or more. No such movement is afoot to reduce the $200 million paid to the insurance defense firm.

The plaintiff's firm was working purely on contingency, taking huge risks, with huge financial investment, and huge commitments of time with the possibility that they get nothing in case of a loss at trial. By contrast, the defense firm was able to accumulate $200 million in legal fees defending the indefensible knowing full well that the case would settle prior to trial. All this, while there was a $1.1 billion fund available to settle these claims.

So, again, why the delay in settlement of these obviously meritorious claims? Perhaps, as they say, the case was not ripe for settlement. It takes a long time to run up $200 million in defense attorney fees.

Is the settlement fair? Let's see. There were 10,000 injured workers. This would allow for about $65,700 per worker assuming the settlement is spread evenly among the workers which it is not. However, the settlement may be reduced to $575 million if more than 95% of the workers do not consent to the settlement. That knocks it down to $57,500 per worker. The defense attorneys will take $200 million for successfully dragging out the litigation for years. The $1.1 billion insurance fund is left with $442.5 million. The workers will continue to suffer from their injuries for the remainder of their lives.

In the coming weeks and months as the debate rages over the fairness of the suit, rest assured the focus of the debate for many will not be on the unjust denial and delay of the workers rightful claims, or the under-compensation of many of the more seriously injured workers, it will be on the fees earned by the plaintiffs' trial attorneys. When the debate arises, and it will, I hope some thoughtful commentators in their attack on plaintiff trial attorneys, will also consider the fact that the defense of the indefensible claim is often at the root of litigation. And most importantly, the question will be asked whether these workers can rest in knowing that they and their families will be justly compensated and their future medical needs will be met.

www.CollinsAttorneys.com

Personal injury lawsuits can often take a very long time. They are often highly stressful on a marriage for a number of reasons. Many times, the injured person is in significant pain following an injury. This can cause a lot of marital friction. In addition, the injured person many times cannot work causing serious financial strain on the marriage. Finally, the injuries will on occasion severely interfere with the intimate relations of the couple. All these strains can lead to divorces in the middle of a personal injury lawsuit or soon thereafter.

The question that arises is whether the personal injury verdict or settlement is community property in New Mexico. The answer is partly yes, mostly no. A personal injury lawsuit results in compensation for damages associated with the individual's injuries. These damages include compensation for the physical injuries as well as the pain and suffering associated with those injuries. In a nutshell, compensation for physical injuries and pain and suffering are not community property. The damages are awarded to compensate the individual for injuries personal to the individual.

However, personal injury settlements also often include amounts for damages beyond the physical damages and pain and suffering. They typically will include damages for medical expenses (past and future) and lost earnings (past and future). These can be far more difficult to classify.

For medical expenses, the classification of the recovery is dependent upon the source of funds for those medical expenses. If the medial expenses were paid out of community funds, then the recovery for medical expenses is community property. However, if the medical expenses were paid from insurance, then the bulk of the recovery for medical expenses is not community property.

The calculation becomes more complex in the case of future medical expenses. Certainly, any medical expenses incurred after the marriage would be separate property. The issue would be complicated in a case where the divorce is pending, or not yet begun, at the time that future medical expenses are awarded. This would require a calculation of the separate portion of those medical expenses still remaining at the time of the divorce, whenever that might occur. This is something that would be addressed in a Marital Settlement Agreement in the property division, or by trial if necessary. It might require the assistance of an expert in accounting or annuities to properly classify the community portion of the settlement.

Lost income is accounted for in much the same way. Any income during the marriage is community property. Therefore, any losses of income accrue to the community. As such, compensation for these losses is also community property. Again, the real complication arises in considering future lost wages. In cases of serious personal injury, the future lost income may represent the vast majority of any settlement or verdict. This is particularly so when the injured person is no longer able to work at all. The calculation of future lost income can be somewhat complicated. In a nutshell , however, future lost earnings involves a calculation of the individual's expected future income over the remainder of his or her working life based upon a variety of factors that indicate income potential. The resulting figure is then amortized back to the present for the calculation of future lost wages.

Clearly, income earned following a divorce is separate property. Income following a legal separation is also separate. Again, the timing of the divorce is critical. If the divorce occurs prior to the final verdict or settlement, then future lost income is clearly separate property and not an issue. If the divorce occurs following the verdict or settlement, then the lost wages will be apportioned according to the date of divorce.

Other complications occur as well. In many cases, the personal injury funds end up getting commingled with other community property such as home improvement projects. This sort of commingling can seriously complicate the allocation of the personal injury verdict or settlement between community and separate property.

The bottom line is that anyone involved in personal injury litigation should consider these issues very carefully if the marriage is on the rocks. The issues can become quite complicated and convoluted. Consultation with an attorney, both family law and personal injury, would be well advised to avoid any possible unpleasant surprises in the division of the verdict or settlement as community property.

www.CollinsAttorneys.com

Auto accidents are among the leading causes of death of teenagers and young adults (ages 15-24) in New Mexico. Youth, drinking and driving is a lethal mix with often lethal consequences. The DWI/DUI laws and underage drinking laws in New Mexico are very strict to avoid the tragedy of youthful DWI/DUI accidents.

There are strict laws against underage drinking including felony charges for providing alcohol to underage drinkers. These penalties can be particularly harsh for service of alcohol to minors. However, despite these laws, minors often manage to obtain alcohol as a result of negligent or reckless bartenders, hosts, clerks or cashiers. Unfortunately, this negligence or recklessness can result in catastrophic injury and sometimes wrongful death.

Fortunately, New Mexico law holds these individuals and entities accountable for the damages caused by their negligence under dram shop laws, social hosts laws, and criminal laws designed to protect individuals from such behavior.

A recent case in California illustrates the law, the possible harm, and the potential recovery for injuries arising out of dram shop or negligent social host situations. The case of Apodaca v. Bradley involved two 20 year olds, Joshua Apodaca and Sean Patrick Bradley, who were served alcohol at a Sonoma County winery during a wedding reception, and then again at convenience store following the reception. The two were served alcohol at the wedding reception despite failing to present identification. Even more remarkably, they were later sold alcohol by a convenience store again with no identification which they then consumed in the store's parking lot.

Bradley who was driving crashed his car into a rock wall as the two travelled home. Apodaca suffered closed head traumatic brain injuries. Apodaca's brain injuries led to severe and permanent cognitive and motor deficits.

Unlike New Mexico, apparently California does not have formal dram shop laws. Instead, the lawsuit was brought under specially enacted laws to address teenage DWI/DUI. The result was a $3.1 million settlement. The winery contributed policy limits of $3 million under its insurance policy. The parents of Bradley contributed their policy limits of $100,000. Bradley himself contributed $5000.

The $3.1 million can never fully compensate Apodaca for all of the damages associated with his severe traumatic brain injury. Apodaca will likely suffer a lifetime of pain and suffering, loss of enjoyment of life, and permanent mental and physical limitations. The loss of income and earnings over his lifetime associated with his injuries are hard to calculate due to his youth. Rest assured, however, even a moderate income over his working life would approach the value of the settlement.

Instead, the bulk of the settlement proceeds will go toward a lifetime of medical care and expense for Apodaca. There will likely be little left to address his remaining damages. Unfortunately, this is often the reality of auto accidents, where there is inadequate insurance to compensate injured persons. In New Mexico, a $3.1 million settlement in an auto accident is extremely rare due to the high level of uninsured/underinsured motorists in the State. Though the settlement cannot possibly compensate Apodaca for his injuries, it is far better than the outcome in most DWI/DUI accidents where there simply is no insurance or financially responsible party to compensate the accident victim other than his or her own uninsured/underinsured motorist coverage.

www.CollinsAttorneys.com

Hidden cameras are playing an important role in the investigation of nursing home abuse and neglect cases. Hidden cameras placed by the family of one abused residence revealed severe abuse of a nursing home stroke resident. The Attorney General in New York has implemented a program of hidden cameras in nursing homes for the detection of abuse and neglect in an expansive effort aimed at the protection of nursing home residents.

In Arrellano v. Fillmore Convalescent Center, the family of Maria Arellano placed hidden cameras in her room after the management of the facility refused to investigate abuse and neglect reported by the family for more than a year prior to placing the hidden cameras. The family had noticed bruising on Ms. Arellano's face, arms and legs which could not be explained since Ms. Arellano was bed-ridden. The facility ignored the family and refused to investigate the claims. The family was forced to insert the hidden cameras in the room for the protection of Ms. Arellano. The camera captured very disturbing behavior on the part of a nursing home employee, Monica Garcia, showing her pulling Ms. Arellano by the hair, slapping her, dragging her, and violently bending her wrists, fingers, and neck.

The abuse was so severe that Ms. Garcia was charged criminally and eventually pled to criminal battery. It is unfortunate that hidden cameras were necessary for the protection of Ms. Arrellano yet this was the only way to properly investigate the abuse since the nursing home facility, Fillmore Convalescent, refused to take any action on its own. In the end, a California jury awarded a total of $7.75 million to Ms. Arellano. Of the $7.75 million award, $5 million was awarded for punitive damages while $2.75 million was awarded for compensatory damages.

The use of hidden cameras is a powerful tool for those who have the wherewithal to use this tool to protect against nursing home abuse and neglect. The New York Attorney General has begun using hidden cameras for the investigation and prosecution of abusive nursing home employees. The Attorney General has used hidden cameras for the arrest and prosecution for both abuse of residents as well as what appears to the problematic practice of falsifying records in efforts to cover up abuse and neglect. Attorney General Cuomo stated that the practice was part of ongoing efforts to investigate and prosecute individuals who "shamelessly mistreat Long Island's most vulnerable patients."

It is unfortunate that hidden cameras are necessary for the protection of nursing home residents. These residents are often completely helpless to defend themselves. As in the Arellano case, they are often unable to even report the abuse due to their condition. The resident, the family, and society place their trust in these facilities to protect society's most vulnerable members. The breach of this trust is unacceptable. Abuse and neglect of nursing home residents is a moral outrage. It is should not be tolerated by a resident, a family or society. Attorney General Cuomo's program is a welcome development on the law enforcement front to insure that this misconduct does not go unpunished.

Sadly, though most of these facilities do perform competently and professionally, there remain those that simply have not gotten the message. There are far too many that continue to prey on the weakness of their helpless patients even when the families report abuse and neglect to management. The refusal to implement protections is generally economically driven. Damage awards as in the Arellano case serve to change the economic calculation. Where morality and basic human decency is not enough to change behavior, money often is. Punitive damages serve this important deterrent function.

www.CollinsAttorneys.com

Birth injuries often have permanent and catastrophic consequences for the injured baby and the family. Birth injuries are not always preventable. There are birth injuries that simply cannot be avoided. On the other hand, birth injuries on many occasions result from medical negligence. In these cases, the child and the family are entitled to the recovery of damages caused by the medical malpractice.

Medical malpractice claims are generally very difficult to bring. There is a strong presumption that the doctor or doctors acted in a professional manner. It must be proven that the doctors' care fell below, and generally well below, the established standard of care in the medical community. The doctor is basically held only to a standard of care that could be reasonably expected under the circumstances.

Proving a doctor negligent is much easier said than done. In addition, doctors and hospitals are often very reluctant to admit medical negligence. As a result, the injured plaintiff must typically obtain an expert medical opinion of his or her establishing the medical negligence. A medical malpractice claim can be long, difficult, emotionally stressful and financially expensive, and in the end juries are often extremely sympathetic to doctors giving them every benefit of the doubt.

This makes verdicts like two recent medical malpractice birth injury cases in New York very remarkable. Both cases, as is often the case in birth injury cases, involved oxygen deprivation at delivery. One case involved a 25 year old plaintiff, Tiffany Busone, who suffered cerebral palsy and spastic quadriplegia due to oxygen deprivation. In addition, the doctors failed to resuscitate her or to recognize that the umbilical cord was suffocating her aggravating her injuries. The second case also involved a 3 year old plaintiff, Diego Baizan, who suffered oxygen deprivation during delivery with the baby in oxygen distress during delivery for over an hour before the doctors ordered a Caesarian delivery. Again, the oxygen deprivation caused cerebral palsy which is common result of this type of birth injury.

In both these cases, the plaintiffs were awarded very large jury verdicts. Tiffany Busone was awarded $43.5 million while Diego Baizan old was awarded $77 million. In the case of Diego Baizan the $77 million verdict was against the hospital who unlike the doctor in the case refused to settle pretrial. Ms. Busone suffered primarily physical injuries and was functioning at a high intellectual level. Diego Baizan suffered severe brain damage. Each will require a lifetime of medical care and treatment for their injuries.

These cases bring up a couple of interesting legal points. The first regards the statute of limitations. In New Mexico, the statute of limitations is only 3 years for these types of claims. In cases of injuries to children, the statute is tolled until the child reaches 18 so that the suit typically can be brought within one year of the child's 18th birthday. A similar tolling statute was clearly in place in New York.

In addition, the damages awards in each bring up interesting points regarding the calculation of damages. An injured person can recover for a host of damages including permanent injuries, pain and suffering, past and future medical damages, and future lost wages. In cases of serious physical injuries such as cerebral palsy and brain injuries, these damages can be enormous due to the future medical care which might include around the clock nursing care. In addition, these injuries bring with them huge potential lost earnings claims. Even at minimum wages, a lifetime of lost earnings can add up to some huge economic damage awards.

These cases illustrate the preposterous nature of all the tort reform debate and the constant thrashing that opportunistic politicians give trial attorneys. Put yourself in the shoes of these two plaintiffs, and their families, and then argue that suits against doctors and hospitals should be stopped to protect the medical profession. The public, injured patients, and the medical profession itself are all harmed when medical negligence is allowed to go unchecked. In addition, without medical malpractice claims, the public, rather than the responsible medical providers, is left to carry the burden of caring for these unfortunate victims of medical malpractice through Medicaid and Medicare.

www.ColllinsAttorneys.com

A settlement of $20 million was reached in March 2009 in the a lawsuit against Burger King for the devastating brain injuries suffered by a 12 year old boy in a 2005 fall from a play structure inside a Burger King facility.

The boy was playing with his 5 year old sister on the play equipment when he fell hitting his head on the tile floor. There was no protective matting below the structure to protect against such injuries. The play structure had monkey bars and a fireman's pole clearing presenting risks of children falling from the structure.

The jury found that the restaurant should have provided some kind of protective covering on the floor rather than the hard tile on which the child fell. In addition, there were no warning signs around the equipment as present in other such facilities. Finally, there had been at least one other fall at the facility showing that the accident and injuries were foreseeable and preventable.

The 12 year old boy suffered severe traumatic brain injury. The injuries are permanent. The child will require a life-time of medical and rehabilitative services. The jury obviously took these permanent injuries and future medical expenses into account in the enormous $20 million verdict.

It is well established under the law of premises liability and negligence that playgrounds must be made safe for children. Parents trust the safety of play equipment every day. The duty to maintain a safe play environment as well as liability and fault for any injuries suffered by the failure to keep this duty lie with the provider of the equipment. This includes restaurants, retail establishments, public playgrounds, and other facilities that offer the use of play equipment to children. In addition to liability for failure to maintain a safe environment for play equipment as was established in this case, manufacturers of play equipment are held to a very high standard of care under products liability law.

If your child is seriously injured in a playground accident, liability for damages may be spread across a number of different parties. It is important to identify all of these the parties from the beginning to avoid possible unexpected apportionment of liability at trial after the statute of limitations has long passed. In case of apportionment of liability to other parties, full recovery for all damages may not be possible if those other parties were not named in the lawsuit.

www.CollinsAttorneys.com

Following a $16 million verdict, Ford Motor Company settles with a woman left paralyzed in an auto accident. The settlement came as the jury considered additional punitive damages against the manufacturer for design defects in the rear seat latch on its Explorer model.

The $16 million verdict came despite the fact that the cause of the accident was the driver of another vehicle that struck the Ford Explorer in which Lynn Wheeler was a passenger in the back seat. Ms. Wheeler was sitting in the center of the back seat between her two grandchildren as the family was en route to church on Christmas Day in 2005. Upon collision with the other vehicle, the rear seat latch failed folding on Ms. Wheeler and slamming her forward into the front console.

Ms. Wheeler suffered spinal cord damage and permanent paralysis from the neck down. The Georgia jury awarded a total of $17.7 million in damages. The jury found apportioned the liability and fault between the driver of the other vehicle that caused the accident holding him liable for $1.2 million for his negligence and Ford liable for the remainder on the products liability claim.

The jury was considering additional punitive damages against Ford at the time of the settlement. The punitive damages could have enormous. Punitive damages typically are based in part on the revenue of the defendant. Punitive damages function to deter future conduct. In this case, it appears based upon the evidence presented by the plaintiff's attorney, that Ford had known about the dangers of the lap only seatbelts for more than 30 years based upon extensive crash testing and research. The knowledge was well documented in Ford's own safety documentation and internal memos.

Despite the obvious dangers presented by the defective design, Ford failed to correct the problem continuing to install the lap belts rather than the safer shoulder belts. As a result of Ford's knowledge of the dangers of its defective design and its deliberate failure to correct the problem, it is likely that the jury would have awarded significant punitive damages. Due to the settlement, Ford will avoid a possibly enormous punitive damages award.

Product liability cases such as these are extremely important for the public safety. Consumers trust their safety and the safety of their families to manufacturers such as Ford. Without product liability suits such as this one, manufacturers would have little incentive to design and manufacture safer products. Indeed, as in this case, the motivation flows in the exact opposite direction as manufacturers would ignore their own safety research and findings in an effort to keep production costs down. It is important that the costs savings associated with cutting costs be weighed heavily against the costs of these suits in the event of their deliberate indifference to the safety of their consumers. Unfortunately, profit alone drives manufacturers such as Ford and the threat of lawsuits if nothing else will hopefully drive them toward more responsible design decisions.

www.CollinsAttorneys.com

It seems that juries across the country are equally appalled by nursing home abuse and neglect as they are in Albuquerque. An Albuquerque jury recently dinged ResCare, Inc. and ResCare New Mexico for $54 million for nursing home neglect and abuse. Notably, the punitive damages awarded against ResCare approached $50 million.

The ResCare case involved the rape of a severely disabled man by a staff member. The recent case out of Brooklyn involved severe neglect that led to extremely serious bedsores all over the injured patient's body. In addition, after only 9 months in the facility, John Danzy's weight had dropped right at 90 pounds to 147 pounds. Despite transfer to another facility, Mr. Danzy later died as a result of the infections.

It took the jury 2 days of deliberation to reach a verdict of $19 million in total damages against the facility in favor of Mr. Danzy's estate. Much like the ResCare verdict, the bulk of the damages were punitive in nature. The jury awarded $15 million in punitive damages for the facility's cover up of its neglect. The plaintiff was able to establish through expert testimony that the facility had gone back and doctored the file in an attempt to cover up the onset, duration, and aggravation of the bed sores as a result of ongoing medical neglect.

The plaintiff's attorneys believed as did the jury that the nursing home had gone back and altered the records once it was apparent they were facing a lawsuit. The jury sent a message to the nursing home industry, and the medical profession as a whole, that attempted evasion of responsibility for medical or nursing home neglect will not be tolerated. This same message was sent in the ResCare case where the defendant denied responsibility to the bitter end. The case of Mr. Danzy was even more appalling where not only was responsibility denied, the facility actively concealed its medical neglect through the alteration of medical records.

It is interesting that the New Mexico verdict was almost 4 times the New York verdict. It is a good sign for New Mexico nursing home plaintiffs with serious claims of nursing home abuse and neglect. This is particularly so in light of New Mexico's appellate courts reluctance to overturn punitive damage awards, as illustrated in Jolley v. Energen. The court there stated that the punitive damages award would not be overturned unless it was so unrelated to the plaintiff's injuries as to "plainly suggest passion and prejudice over reason and justice." This gives the plaintiff a lot of bargaining room when it comes time for negotiating the settlement during the inevitable appeals that follow such awards in New Mexico.

www.CollinsAttorneys.com

The family of a worker killed in a construction accident in Texas reached a settlement with the contractor and subcontractors in a wrongful death lawsuit for the seemingly low amount of $440,000.00. The low number probably suggests issues of comparative fault on the part of the deceased worker and his employer.

Luis Lara was a 23 year old construction worker. He was working on a construction job site in Mesquite, Texas, just outside of Dallas, where workers were lifted to upper floors of the job site with a forklift. As he was being lifting in a box by the forklift, the box tipped from the forklift sending him falling 2 stories to the ground where he hit a metal beam. He was pronounced dead at the scene.

The family sued both the contractor and the subcontractors for Mr. Lara's wrongful death. It was alleged that the contractor CME Builders and the subcontractors, Frontier Framing and Associated Truss & Lumber, used the forklift in a negligent manner contrary to the equipment's instructions as well as construction industry safety regulations. Past negligence and OSHA citations by Frontier Framing bolstered the claims of negligence against the defendants.

The defendants argued comparative negligence on the part of Mr. Lara which probably played a role in the relatively low wrongful death award of only $440,000.00. The injuries and damages to Mr. Lara and his family probably far exceeded this amount. Mr. Lara's estate was entitled to recover for the wrongful death itself. The loss of life alone suggests a much higher settlement or jury verdict absent issues of comparative negligence.

In addition, because Mr. Lara was only 23 years old, and had his full work life ahead of him, the lost future earnings could far exceed the amount awarded. In the case of such a young worker killed on the job, the lost earnings over the remaining work life of Mr. Lara would likely exceed the million dollar mark unless he was a low paid laborer with little future earnings potential.

Lost earnings are typically calculated by expert economists that project the worker's remaining life-long earnings based upon his current age, position, past work history, educational level, industry wages and potential earnings along with other considerations to arrive at the estimate of lost future earnings. These numbers can be enormous in the case of young workers, particularly those in high paying fields such as construction.

The relatively low settlement amount suggests that Mr. Lara's earnings were not on the high end of the construction idustry. In addition, the settlement amount suggests a significant level of comparative fault on the part of Mr. Lara. Finally, there were likely other comparative fault issues that arose as a result of worker compensation limits if Mr. Lara's employer was found even partially at fault for his wrongful death due to strict limits on employer liability under workers compensation statutes.

www.CollinsAttorneys.com

The $100 million award of punitive damages against British Petroleum for workers injured by a toxic chemical release raise some interesting issues for New Mexico law. The federal court case in Texas offers some precedent but punitive damages awards are governed by state law. It seems unlikely that the award against BP would stand due to the 333 to 1 ration of punitive damages to compensatory damages.

New Mexico's law is fairly well established. A punitive damages award in New Mexico will be overturned only if it shocks the conscience. Texas law is probably similar explaining the language used by the BP spokesman. The seminal case in New Mexico is Jolley v. Energen (NM App. 2008).

The Court in Jolley relied heavily on the 2003 U.S. Supreme Court case of State Farm Mut. Auto. Ins. Co. v. Campbell. The Supreme Court in Campbell stated that the " degree of reprehensibility of a defendant's conduct was the most important consideration in the reasonableness of a punitive damages award. Drawing further on Campbell, the Court stated that " we compare the damages to the enormity of Defendant's wrong apart from the actual injury sustained." The reprehensibility of the defendant's conduct is measured by five categories of conduct:

1) the harm caused was physical as opposed to economic;
2) the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others;
3) the target of the conduct had financial vulnerability;
4) the conduct involved repeated actions or was an isolated incident; and
5) the harm was the result of intentional malice, trickery, or deceit, as opposed to mere accident.

The Court in Jolley recognized that punitive damages are awarded for the purposes of punishment and deterrence of others from similar behavior. However, punitive damages must be based on reason and justice. The Supreme Court in Campbell refused to impose a bright-line ratio but stated that single digit multipliers are more likely to meet the standards of due process.

The Court in Jolley upheld the punitive damages award which was less than 7 to 1 in the case. The $15 million represented one of the largest punitive damages awards in the state's history. In so ruling, the Court stated that the punitive damages award must not be so unrelated to the injuries as to plainly suggest passion and prejudice over reason and justice in the jury's verdict.

The BP verdict representing 333 to 1 would appear to suggest that passion and prejudice dictated the jury's verdict and would likely not stand in New Mexico. In fact, the history of BP's behavior which likely formed the basis for the enormous award was also probably the basis for the passion and prejudice of the jury. The case is most interesting in light of BP's history at the subject plant. After all, punitive damages are meant to deter bad behavior and quite clearly BP has not yet received that message.

Whether or not the verdict is overturned, the verdict certainly sends a message to corporate actors to behave reasonably in the future in settlement discussions. BP's stubborn $500/worker offer of settlement resulted in the litigation. Unfortunately, such behavior is often present when dealing with corporations and insurance companies. Verdicts such as the one against BP should cause cause corporations to approach the process with greater fairness and reason. I say should because the reality is that nothing is likely to change.

www.CollinsAttorneys.com

Ten British Petroleum workers were awarded $100 million dollars by a federal jury for injuries and damages related to contamination at one of the company's plants. According to reports, all but $300,000 of the $100 million award were for punitive damages.

A spokesman for BP stated that "We are shocked and outraged by today's verdict, and we will appeal... The verdict, and punitive damages award in particular, is utterly unjustified, improper and unsupportable."

BP clearly will appeal and its chances of success are pretty good. The ration of 333 to 1 punitive damages to compensatory damages is a pretty high ration by any standard. In addition, Texas courts often caps punitive damages at $200,000 per plaintiff.

On the other hand, this case is exceptional in a number of respects. First, BP has a history of safety violations at the subject plant where 15 workers were killed in 2005 in an explosion at the plant. The company settled for $2 billion in damages and was ordered to pay an additional $50 million in criminal fines. The company is currently fighting an $87 million fine imposed earlier this year by OSHA for safety violations. The jury obviously found that BP's behavior represented a pattern of behavior suggesting willful, wanton or reckless conduct. The jury verdict may also have represented passion and prejudice over reason and justice, which in New Mexico is a basis for reversal of punitive damages awards.

Whether the verdict is overturned on appeal or not, it should get the attention of BP since there remain 133 additional workers who have made claims related to the same toxic chemical release in 2007. The lawyer for the injured workers stated that he had offered to settle early on for $10,000 per worker. BP countered with $500 per worker stating that they had suffered no injuries. The lawyer for the workers stated that he had not wanted to try the case but BP's lack of reasonableness in refusing to budge from its $500/worker offer forced him to trial.

Hopefully, the case sends a message to other corporate defendants who all too often refuse to acknowledge any responsibility for their actions. Punitive damages are a way offorcing a defendant to acknowledge its wrongdoing and to prevent future such conduct. Punitive damages act as a deterrent to future bad behavior similar to the behavior that caused the injuries. In addition, they often deter future bad behavior in the bad faith settlement of claims as obviously occurred here.

The BP verdict's legality and impact in New Mexico will be explored in a follow up article.

www.CollinsAttorneys.com

An Albuquerque jury delivered a huge $54 million verdict on December 1, 2009 sending a message to ResCare, Inc. that their behavior would not be tolerated.

The case involved a severely mentally disabled man who was raped by of the staff members working at the facility where he lived. Compensatory damages were awarded in the amount of $4.95 million. The remainder of the verdict was for punitive damages against ResCare, Inc. and ResCare New Mexico.

ResCare had denied responsibility and liability throughout the case and throughout the trial. The attorney for the defense argued in closing that sometimes bad things just happen no matter what you do. The jury didn't buy it, and sent a message that such an abrogation of corporate responsibility for the acts of its agents is intolerable.

It is hoped but doubtful that nursing homes and group home management companies will take note. Instead, it is more likely that these entities will continue to dodge responsibility at every turn. Rather than accepting responsibility for their corporate acts and the acts of their agents, that are by the way highly profitable, they will instead deny responsibility or liability from the outset in every case of abuse no matter how atrocious and clear the liability. They will likely continue to shield their true ownership making such filing a lawsuit and getting the right parties named and served a indecipherable labyrinth.

Yes the jury did send ResCare and the industry a message. The real question is was the message received. It is doubtful and the coming days of appeals and continued dodging will provide the answer.

www.CollinsAttorneys.com