I thought we would stop seeing these cases as the product faded from the marketplace, MTD sent out replacements and consumers stopped using the product.  However, reports of injuries from these MTD products are continuing to arise even though we are 4-5 years post-product recall.  The Statute of Limitations for a negligence and/or product liability claim such as these is 3 years from date of injury.  So, assuming the product was recalled in 2006 and manufactured even earlier, consumers still have a claim against MTD for 3 years from date of accident.  Whether the injured consumer owns the MTD snowblower, rented the MTD snowblower or even borrowed the MTD snowblower, the injured party should contact an attorney immediately to assist them with their claim against MTD.

If you or someone you know has an MTD snowblower that falls within the scope of the CPSC recall and the product has not yet exploded, I urge you to contact MTD to discuss getting a replacement before someone gets injured.

A plaintiff’s attorney accepting any malpractice case must be prepared to outlay upwards of $50,000 in costs to see the case to trial.  This, along with countless attorneys’ hours, is the true price of bringing a claim that, statictically speaking, juries dont like.  Defendant doctors, or more accurately, their insurers, typically do not negotiate settlements until the eve of trial, if ever.  This means the plaintiffs’ must endure the cost of hiring expert after expert and be prepared to bring that expert into to court.  Together, these factors make the “minor” medical malpractice claims impracticable to pursue, and the major cases a huge risk for the Firm.  In larger, complex cases, the $750,000 cap can work towards making a claim financially unfeasible for the attorney and client if the price tag of experts becomes too costly.

Attorneys “dabbling” in plaintiffs medical malpractice should be very leary of these realities when screening potential new cases.  The Warshafsky Law Firm employs a full-time M.D./J.D to do medical malpractice new case screenings and reviews.  Unfortunately, having a Doctor or Nurse on staff has almost become a necessity to practice plaintiffs medical malpractice given the tough litigation climate.

The scary aspect for consumers is that claims are down in Wisconsin likely because of litigation truths, not because Wisconsin residents have enjoyed an increased standard of care from physicians and hospitals.

The provision would allow plaintiffs lawyers to deduct the up-front expenses of pursuing contingency-fee lawsuits, even in cases where the lawyer is expecting to be reimbursed for these expenses. The IRS currently considers these costs a loan from the lawyer to his client, and like other taxpayers, the lawyer can only deduct the loan if it isn’t paid back.

Mr. Rangel’s spokesman says, “This is purely a matter of fairness and tax equity. The individuals who would benefit from this provision are already eligible to deduct expenses related to contingency-fee lawsuits, the only question is when.” Not exactly. Attorneys who snare a percentage of the recovery plus expenses today receive no deduction. Allowing these big deductions now would mean that future reimbursements are taxed, but with some monster class-actions, the lawyers could avoid the tax bill for a decade or more.

Simply put, this Bill would allow Firms that operate on contingency fee agreements to deduct costs and expenses on an on-going basis rather than taking one big deduction at the case’s conclusion should the case not be successful.  Firms can take yearly deductions for “costs and expenses” that if at case resolution are recovered, are treated as income for the recovery year.  To me, this seems to put Firms on the same level as other small businesses.  Take the deductions on a yearly basis and treat their recovery as income when the Firm recovers. The current status of costs as “loans” is not accurate, as Firms do not charge interest to the client.  One thing is certain, the tax consequences of this Bill for Firms big and small is gigantic, especially in the realm of class-actions.

However, the WI decision should not be a surprise to any lawyer.  When the U.S. Supreme Court directly addresses an issue and rules concisely in one direction, no one should expect a state to head the other direction.  Some members of the Court feel the Courts’ hands were tied:

Two concurring justices — Walsh Bradley and Chief Justice Shirley Abrahamson — criticized the U.S. Supreme Court decision but said they must follow it. The decision leaves Wisconsin residents’ safety in the hands of the flawed FDA, Walsh Braldey wrote.

She cited a letter from FDA scientists released last month that charged “the scientific review process for medical devices at FDA has been corrupted and distorted by current FDA managers, thereby placing the American people at risk.”

“It is not at all apparent that the FDA approval process actually guarantees a minimum level of safety for medical devices,” Walsh Bradley wrote.

Sometime this term, the U.S. Supreme Court is expected to rule on a similar pre-emption issue involving giant drug manufacturer Weyth.  A ruling in favor of Weyth would prevent patients injured by prescription drugs from holding manufacturers liable for putting dangerous products on the market if those products are previously approved by the FDA.

The We Energies explosion apparently involves Waukesha based ThyssenKrupp Safway, a subcontractor providing scaffolding services.  It also apparently involves United States Fire Protection, a New Berlin firm that provides fire protection services.  Injured workers may have possible claims against both companies depending on their employer and who ends up being the at-fault party.

Coal dust explosion are very difficult cases to figure out, let alone prove.  Coal dust explosions are often the result of negligent 3rd parties that are unfamiliar with the inherent dangers of coal dust.  Everybody surrounding the We Energies site must use reasonable care in handling coal dust, and must also use reasonable care to warn of the risk associated with working around coal dust.  What is “reasonable care” depends on many factors, including opinions held by workplace experts.

I recently wrote about Wisconsin auto accident fatalities, which in 2008 were down 18% statewide.  Wisconsin’s study indicates much of the same reasons for the decrease.  However, laws forbidding cell phone usage are much less prevalent in Wisconsin than they are in Illinois, which suggests Illinois’s 16% drop was not influenced by the restrictive laws as much as it was other safe driving techniques.  The year 2009 will be a better test study into the relationship between laws and auto accident fatalities, as Illinois recently passed mandatory ignition interlock devices for first time Driving Under the Influence offenders.

UPDATE - Today the Houston Police Department cleared the involved police officers from any wrongdoing.  The HPD said:

In a one-page statement, the Houston Police Department said an internal investigation concluded they “could not prove or disprove” allegations that Marvin Driver Jr., 56, was severely beaten and injured before being taken to jail Nov. 17 for outstanding traffic warrants. Police said the claims have been ruled as “not sustained.”

Shocking.  The HPD does an internal investigation of its own officers accused of wrongdoing and couldnt substantiate the allegations of brutality.  I could have almost written today’s press release the day the alleged brutality occurred. 

Victims of perceived police brutalilty should not be deterred by these internal investigations. Instead, they should seek out an attorney to represent them in Section 1983 civil rights action to perform an ”external” investigation into the truth.  Through a lawsuit, subpoenas, depositions and other discovery methods become the true fact finding instruments.  Internal investigations tend to be police officer friendly and may not reveal the absolute truth.  Additionally, actions that do not violate police department standards may be found to violate an individual’s civil rights.  Such was the result in Frank Jude’s civil rights action against the Milwaukee police officers he accused of extreme brutality.  The officers were initially cleared by the MPD of any wrongdoing AND acquitted in state court before they were finally convicted in federal court.

Using consumer law statutes against big business is not novel.  This Altria case is similar in form to the lead paint cases of recent past where consumer law statutes where used to punish a known and present danger produced and provided to the public on a wide-scale basis.  

Litigants in Altria have plenty of work ahead as the Court simply allowed the case and similar cases to proceed.  At a minimum Altria will now have to spend millions to defend these cases.  Another chink in the armor of a business sector that has taken many hits in recent past.

Four Illinois Supreme Court justices have been asked to withdraw from hearing an appeal of a legal-malpractice case against Corboy & Demetrio, one of the nation’s top personal-injury firms, because the justices have gotten political contributions from the Chicago firm’s attorneys.

Wisconsin law deals with this issue by stating INDIVIDUALS may make political contributions, but FIRMS can not.  But this does raise interesting questions in Wisconsin.  Such as, should judges who receive big cash contributions from Corporate CEOs recuse themselves when the Judge is asked to rule on case involving the Corporation?  Are individual contributions enough to sustain a motion to recuse?  Should a criminal defendant in front of newly elected Wisconsin Supreme Court Justice Gableman ask the Justice to recuse himself based on Gableman’s despicable and discriminatory campaign ads?  I think the latter is a stretch, but it is an issue I heard a prominent criminal defense attorney make in the not too distant past. 

The U.S. Supreme Court has agree to address this issue this term.  Stay tuned to see how this issue shakes out.

Its no secret that I am a plaintiffs trial lawyer who represents people injured in a wide variety of ways.  But I must admit, I had no idea these types of cases still existed.  There are many critizisms to go around, including the plaintiffs lawyers who bring these SOMETIMES unmeritorious claims, to the big corporations that place profit ahead of customer safety.

Recently, (again, ancient in blogesphere time) a New York appellate judge lowed the verdict to around $76,000.  Although factually different, the Starbucks case and the McDonalds case are very similar.  In both cases a jury found negligence on behalf of the companies.  Both juries awarded an amount of money that was later reduced by an appellate judge. Both companies were found to be serving coffee above reasonable temperatures.

These highly publicized cases outrage individuals on Wisconsin juries when they are put to the task of awarding money to an injured plaintiff.  ”Someone getting money for nothing while I sit here and waste my day on jury duty for the paltry $20 bucks a day”.  Appears as if some battles are won in spite of the war.

I’m curius if there are ”Starbucks” or “McDonalds” cases in Wisconsin????