NFL and Players Reach $765M Concussion Lawsuit Settlement

The National Football League and more than 4,500 of its former players have reached a $765 million agreement to settle lawsuits alleging that the league hid the dangers of brain injuries and didn’t do enough to protect players from concussions.

The lawsuit, which includes former stars like Tony Dorsett and Jim McMahon, plus the family of the late Junior Seau, has been making its way through U.S. District Court in Philadelphia. Last month, the NFL filed a motion asking the court to dismiss the case, but instead of ruling on the motion one way or another, U.S. District Court Judge Anita B. Brody ordered both sides to mediation. Today’s announced settlement agreement is a product of those mediation sessions.

According to the New York Times, “the money would be used for medical exams, concussion-related compensation and a program of medical research for retired players and their families. The N.F.L. also agreed to pay [the plaintiffs'] legal fees.”

The settlement comes at a time when unprecedented attention is being paid to player safety at all levels of the game — from the NFL and college all the way down to Pop Warner leagues — with a particular emphasis on preventing, diagnosing, and treating head injuries like concussions. (Learn more about Legal Liability for Brain Injuries.)

In the not-so-distant past, after a violent helmet-to-helmet collision, an NFL player was said to have had his “bell rung,” and he might spend a play or two on the sidelines in many instances. These days, team medical staff is on strict notice, and players must pass a rigid protocol when a concussion is suspected. It isn’t rare for a concussion to lead to weeks of a player being designated as “Out” on a team’s injury report, and teams are operating with an abundance of medical caution when it comes to players who have histories of concussions and other head injuries.

The Washington Post recently published an article spotlighting the NFL’s complicated dance on the line between player safety and league culpability: Do No Harm: NFL Tries to Improve Player Safety Without Admitting to Any Liability for Past. And PBS’ Frontline has weighed in on the topic in a timely feature focused on Football Head Injuries.

Study Shows All-Time Low Medical Malpractice Payouts in 2012

Payouts to patients who have been harmed by medical malpractice fell to the lowest on record in 2012, according to consumer rights watchdog group Public Citizen.

The organization recently looked at data from the National Practitioner Data Bank, a database used by the federal government to track payouts in medical malpractice cases nationwide.

Here is a look at some trends over the last 10 years, as captured in the report ”No Correlation: Continued Decrease in Medical Malpractice Payments Debunks Theory That Litigation Is to Blame for Soaring Medical Costs”:

  • Malpractice payments made on behalf of doctors fell for the ninth consecutive year in 2012, and the overall number of payouts (9,379) is the lowest on record.
  • Medical malpractice payments have dropped by almost 29 percent, while national health care costs have climbed 58 percent.

As the name of the study suggests, Public Citizen asserts that the numbers challenge the popular notion that high-priced payouts to medical malpractice plaintiffs is a key contributor to rising health care costs.

(Medical Malpractice Q&A)

But what about other aspects of the health care cost spectrum; not just the end game of verdicts and settlements?   Are doctors and other health care providers spending unprecedented amounts on liability and malpractice insurance, thanks in part to the fear of having to defend against the next big medical malpractice verdict? Public Citizen says no, pointing to the fact that medical liability insurance premiums  fell to 0.36 of 1 percent of health care costs, the lowest level in the past decade.

And speaking of medical malpractice, a recent investigation and report by USA Today finds that state medical boards aren’t doing nearly enough to strip the licenses of doctors whose checkered professional histories feature numerous instances of misconduct and treatment errors that have brought harm to patients: Thousands of Doctors Practicing Despite Errors, Misconduct.

Total Recall Information Available to Vehicle Owners Under New Federal Rule

Wondering whether your car has been the subject of any manufacturer recalls? What about the defect history of that gently-used SUV you’re thinking about buying? It hasn’t been all that easy to track down critical information like this, but that could all change thanks to a new federal requirement announced by the National Highway Safety Administration (NHTSA).

By this time next year, you’ll be able to enter your vehicle identification number (VIN) into an online auto manufacturer database, and get detailed information on any recall affecting your car, light truck, or motorcycle. According to the NHTSA, manufacturers will be required to update the databases at least weekly, and a related search feature will also be available on the federal government’s official automotive safety website www.safercar.gov.

“Currently, consumers are limited to general searches by vehicle make and model year on the NHTSA website. With the new VIN search feature, consumers will be able to tell whether a specific vehicle is subject to a recall and whether the vehicle has received the remedy,” the NHTSA said in its press release announcing the new rule.

What are your legal options if your vehicle is recalled, or if you’re in a car accident where a vehicle defect may have played a part? Learn more in our Nolo articles Safety Recalls for Cars and Motorcycles and Product Liability Claims Involving Defective Cars.

How Safe is Your Small Car?

The Insurance Institute for Highway Safety is at it again, totaling brand new cars in the interest of keeping consumers informed, and keeping carmakers’ feet to the fire when it comes to vehicle safety.

The latest round of IIHS testing ran a dozen 2013 model year “small cars” through the “small overlap” crash scenario, where the front of a vehicle strikes a five-foot tall barrier that is offset on the driver’s side. The vehicles are traveling 40 miles-per-hour at the time of impact, and a “dummy” (the IIHS’s word, not ours) is belted into the driver’s seat.

Vehicles were rated based on a number of factors, including structural integrity, restraint system performance, and ability to prevent or minimize car accident injuries.

You can check out the full results of the IIHS small overlap crash test here. But it looks like Honda owners can rest a little easier at night, as two- and four-door model Civics were the only cars to earn the top rating of “good.” But there may be some tossing and turning for owners of the Nissan Sentra, Kia Soul, and Kia Forte, all of which earned an overall rating of “poor.”

So, why judge cars based on how they perform in a “small overlap” crash test? IIHS explains in a press release announcing the results: “In many vehicles the impact at a 25 percent overlap misses the primary structures designed to manage crash energy. That increases the risk of severe damage to or collapse of the occupant compartment structure. Also, vehicles tend to rotate and slide sideways during this type of collision, and that can move the driver’s head outboard, away from the protection of the front airbag. If the dummy misses the airbag or slides off of it, the head and chest are unprotected.”

For everything you ever wanted to know about making a claim for vehicle damage or injury after a car accident, check out Nolo’s new website all-about-car-accidents.com.

Get a Jump on Trampoline Safety

If you’ve got a trampoline in your backyard, your first priority is to keep things safe for kids and anyone else who might end up using it. (That includes neighborhood foxes.)

Homeowners need to be particularly mindful of any potential dangers when it comes to the condition of a trampoline and the way it is being used. Otherwise, you could open yourself up to legal liability for any injury that ends up occurring. And even when the liability provision of your homeowners insurance coverage kicks in, it can still end up costing you by way of increased premiums or even a cancelled policy.

The safety-related steps you need to take depend on the law in your state, and especially whether or not a trampoline is considered an “attractive nuisance,” which would trigger a heightened set of precautions for kids visiting your property, even when they are technically trespassing. (Learn more about homeowner liability for trampoline injuries and attractive nuisance laws.)

With that in mind — alongside the reminder that there were over 83,000 trampoline-related emergency room visits in 2011 alone — the U.S. Consumer Production Safety Commission recently offered some Trampoline Safety Tips for parents and homeowners:

  • only one person on the trampoline at a time
  • no somersaults
  • shock-absorbing pads should completely cover the trampoline’s springs, hooks and frame
  • trampoline should be placed well away from structures, trees and other play areas
  • no child under 6 years of age should use a full-size trampoline.
  • do not use a ladder with the trampoline, because it provides unsupervised access by small children
  • always supervise children who use a trampoline, and
  • use a trampoline enclosure to help prevent injuries from falls.

‘Texas Giant’ Roller Coaster Accident: What Does the Law Say?

Over the weekend, a Dallas woman was killed when she fell from a roller coaster car on the 14-story tall Texas Giant ride in Arlington’s “Six Flags Over Texas” amusement park.  (You can get more details on the accident from the Fort Worth Star Telegram article.)

Let’s take a look at a few legal “hotspots” related to this story:

There is Limited Government Regulation of Roller Coasters.  You might be surprised to learn that for fixed-site rides like those at any Six Flags amusement park, there are no federal safety regulations in place. Only about half of U.S. states regulate fixed-site rides and conduct park inspections, and Texas is not one of them (there is no state regulatory agency set up to monitor the safety of amusement parks). Learn more about Amusement Park Accidents and the Law.

Six Flags Could Be Liable for a Park Employee’s Negligence. There has been at least one witness report suggesting that, before the ride departed, the accident victim expressed concern over whether or not the car’s safety bar was working properly. (The Dallas Morning News has detailed some safety and staffing concerns at the park.)

If it is shown that a park employee’s negligence caused or contributed to the accident, then that worker’s carelessness will be imputed to the owners and operators of the park, under a legal theory known as “vicarious liability.” So, let’s say that it is park policy for employees to check that each Texas Giant coaster car’s safety bar is properly engaged prior to the start of the ride, and it’s also shown that a worker failed to do that in this case. Six Flags could be on the financial hook for the victim’s death in that situation, most likely in the form of a wrongful death lawsuit.

The Roller Coaster Car Manufacturer Could Be Liable If the Car’s Safety Features Malfunctioned. If the Texas Giant roller coaster car’s safety mechanisms did not function properly during the ride, and that failure played a role in the accident, then the car’s manufacturer could be held liable under a product liability legal theory. The Los Angeles Times reports that the German company that manufactured cars for the Texas Giant has already sent investigators to the accident scene in Arlington.

Six Flags Could Claim a Number of Legal Defenses. If faced with a personal injury lawsuit over the victim’s death, it’s a safe bet that Six Flags will try to argue a variety of legal defenses that are common in amusement park accident cases, including rider assumption of the risk, and rider non-compliance with park/ride safety rules. Learn more about Legal Defenses in Personal Injury Cases.

The Wrongful Death Case Against George Zimmerman

As you’ve no doubt heard by now, over the weekend a Florida jury acquitted George Zimmerman in the criminal trial over the death of 17 year-old Trayvon Martin. (Learn more about the criminal case here.) But that doesn’t necessarily mean Zimmerman has seen his last courtroom in connection with the incident. The NAACP is calling for a civil rights probe into the case, and Martin’s family could very well file a wrongful death lawsuit against Zimmerman in civil court.

As for the wrongful death angle, probably the most famous parallel here is the O.J. Simpson case. In 1995, Simpson was acquitted of the murders of his ex-wife and her friend, but was later placed on the financial hook for over $33 million in civil liability after the victims’ families brought a successful wrongful death lawsuit against him.

So, what might a wrongful death lawsuit against George Zimmerman look like? Under Florida’s Wrongful Death Act, a “personal representative” could go to court and file the civil suit on behalf of one or both of Trayvon Martin’s parents, as “survivors” of the deceased. Assuming Martin had no will and did not appoint a personal representative, Martin’s parents would likely qualify as “personal representatives” of his estate. So, the parents here could end up both 1) bringing the lawsuit, and 2) also being named as “survivors” who are entitled to compensation.

In wrongful death cases, “survivors” in effect “stand in the shoes” of the deceased when a wrongful act would have entitled the deceased person (Martin) to file a lawsuit and recover damages if death had not resulted from the defendant’s (Zimmerman’s) actions. Keep in mind here that Martin’s parents would not need to prove that Zimmerman committed a crime; it would be enough to show that Zimmerman’s carelessness or negligence resulted in Martin’s death.

There are restrictions on the kinds of personal injury damages that Martin’s parents could recover. They could get compensation for Martin’s pain and suffering in connection with his injuries and death. They could also recover the present value of “future loss of support and services” from the date of Martin’s death through a period of time that considers the life expectancies of Martin and his parents. Finally, reimbursement of funeral expenses is also an option under Florida law. (You can view the complete text of Florida’s Wrongful Death Act starting at Florida Statutes Title XLV section 768.16.)

Besides liability for money damages as a remedy (versus a penalty of incarceration for prosecution), the key difference between the criminal trial and any wrongful death civil proceeding is the “standard of proof.” The prosecutors needed to establish that Zimmerman was guilty of homicide (either second-degree murder or the lesser-included charge of manslaughter) “beyond a reasonable doubt.” Obviously, the jury found that the state’s prosecutors fell short of meeting this burden.

But in civil court, lawyers for Martin’s family would only need to prove that it is more likely than not that a wrongful act by Zimmerman caused Martin’s death. The legalese version of this standard is “by a preponderance of the evidence.” So, it’s a much lower bar that needs to be met in a civil case when it comes to proving liability.

Some Asiana Crash Injuries Linked to Seat Belts

Investigators continue to piece together the cause of the accident involving Asiana Airlines Flight 214, which crashed just short of a bay-adjacent runway at San Francisco International Airport on July 6th. In addition to two fatalities, there were over 150 passenger and crewmember injuries linked to the crash, and a pattern seems to be emerging when it comes to the cause of some of those injuries.

According to the Wall Street Journal, “[w]hen passengers began streaming into emergency rooms, hospital staffers said they saw many injuries associated with using seat belts that fasten around the lap,” the kinds of in-seat restraints that are used by the vast majority of airlines in all seating areas of their passenger aircraft.

WSJ notes that the design of these restraints — notably the absence of any chest or shoulder harness — is a practical one: “Seats where lap belts are used are now designed so that in a crash, passengers are cushioned by the seats in front of them. The seat back is designed to fall forward, absorbing the blow. [Installation of chest harnesses] would add to seats’ weight and require a heavier mounting system and floor frame, experts said.”

Over at CNBC, they’re opining that the absence of a safer seat belt system on planes comes down to questions of cost and comfort.

Learn more about injuries caused by seat belts and legal issues in airplane accident cases.

Study Offers a Heads-Up on Distracted Walking

We’ve all heard about the dangers of talking on a cell phone or texting while behind the wheel. But a new study confirms that even when we’re walking around using our smart phones, we’re still making dumb decisions.

The journal Accident Analysis & Prevention is soon to publish its findings on emergency room visits by pedestrians who were using their mobile phone in a public place when they suffered an injury, and the trend looks like this:

  • 256 to 597 such incidents occurred between 2004 and 2007
  • 1,055 occurred in 2008
  • 1,113 took place in 2009, and
  • there were 1,506 in 2010.

Perhaps not surprisingly, young whippersnappers (which the study referred to as “people under 31 years of age”) were among the most often-injured in these pedestrian accidents, and as far as comparisons to distracted driving, as  WebMD points out, “estimated numbers of injuries to pedestrians on cellphones were roughly equal to those of drivers who were on cellphones.”

On the perceived dangers of talking versus texting, this from The Atlantic, after pointing out a few “schadenfreudic gems” from the study where pedestrians were engaged in actual conversation: “Notice that these people were talking, not texting. In fact, 69.5 percent of the injuries that occured during this time came from people who were distracted by a conversation; texting only accounted for 9.1 percent.”

 

Chrysler Recalls 2.7 Million Jeep Vehicles Over Fire Risk

Chrysler is recalling more than 2.7 million Jeep vehicles over the risk that rear-end collisions could cause the vehicles to catch fire, due to a potentially defective gas tank design.

Over the past few weeks Chrysler has been involved in a lot of back-and-forth with the National Highway Traffic Safety Administration (NHTSA), which requested that the automaker issue a voluntary recall over the problem.

Car companies tend to go along with these kinds of NHTSA requests without putting up much of a fight, but Chrysler had refused to issue any recall until it was up against an NHTSA-imposed deadline for compliance with the request. (See NHTSA resources on the Chrysler recall.)

The recall involves the following Jeep sport utility vehicle models:

  • Jeep Grand Cherokee for model year 1993 to 2004, and
  • Jeep Liberty for model year 2002 to 2007.

According to the Los Angeles Times, Chrysler’s strategy may end up paying off when it comes to the alleged vehicle defect: “By choosing to blink in a high-stakes game of chicken, Chrysler may in fact come out the big winner. That’s because the proposed repair — installing low-cost trailer hitches — could prove far less expensive than other potential remedies.”

For Jeep owners with questions about how the recall affects them, hopefully this MSNBC article has the answers: What Worried Owners Can Do About Jeep Recall. And if you’re interested, learn about your legal options for vehicle defects.