Archive for March, 2010

Black Box Data Key Evidence in Tennessee Truck Crash Cases

Tuesday, March 30th, 2010

There has been a concerted effort in recent years to have the commercial trucking industry use “black boxes” to improve safety.  Black box monitoring systems also known as electronic log systems, electronic data recorders and electronic control modules systems have revolutionized the way Tennessee trucking accident lawyers litigate trucking accident cases.  The truck accident law firm of Nahon, Saharovich & Trotz, PLC (NST Law) recognizes the fundamental role of “black box” evidence in trucking accident cases and will make sure the data is preserved so that it can be used to by an expert to reconstruct the circumstances surrounding a Tennessee truck accident.

Black boxes provide a wealth of information that can be used by a trucking accident lawyer to establish the basis for the trucking company’s liability during settlement negotiations and at trial.  Black boxes record an abundance of critical information that can be important in establishing negligence in a trucking accident including issues related to the condition of the vehicle such as vehicles maintenance problems and tire pressure.  Critical evidence about the driver’s performance is also recorded such as sudden braking, speed control issues, clutch application and shifting, following distance, and exceeding regulated hours.

Experienced trucking lawyers such as those at NST Law will also investigate black box data for relevant email communication between the driver and the trucking company.  Email correspondence obtained from black boxes may provide damning admissions about mechanical problems, driver fatigue or other admissions of fault by the truck driver immediately following a trucking accident.  Because black boxes are typically equipped with global positioning systems (GPS), they provide detailed information regarding where the truck was immediately prior to a trucking accident.

If a person is seriously injured or killed in a trucking accident, it is imperative he or she retain an experienced trucking accident lawyer immediately because black box evidence that may be indispensable can legally and intentionally be destroyed.   Tennessee trucking companies may destroy or “lose” important data and documents that may establish negligence and hours of service violations to avoid liability where a trucking accident results in serious injury or death to another person.

The attorneys at NST Law will immediately send written notice via certified mail to the trucking company that the black box data must be preserved for pending litigation and that the truck must not be moved or repaired.  This letter is sometimes called a “spoliation letter.”

Experienced trucking accident lawyers will direct the company not to move or repair the truck because this can result in the event recorder being erased or recorded over before the information can be downloaded.  If the trucking company refuses to provide the black box data claiming it has been destroyed or lost, the experienced trucking accident lawyers at NST Law can demand that the trucking company provide the backup copy that the Federal Motor Carrier Safety Administration (FMCSA) requires be kept somewhere other than the truck’s on board computer.

The attorneys at NST Law may also retain an expert to be present during the download of the black box data to help prevent “lost” information.  We will also try to reach an agreement with the trucking company regarding how and when the information will be downloaded to avoid “accidental” loss of critical data.  If the trucking company refuses to cooperate, the attorneys at NST Law may expedite the filing of a civil lawsuit and request an Ex Parte Temporary Restraining Order (TRO) to prevent the trucking company from doing anything that might result in loss of the black box data.

The black box data can be used to build a case against the trucking company or to discredit the trucking company’s claim regarding the circumstances of the trucking accident.  At NST Law, we may employ an accident reconstruction expert who will use the information obtained from the black box to create computerized animations of the accident, which are very effective and convincing tools for proving liability to a jury.

The black box data can also be used to discredit the testimony of the driver, trucking company expert or trucking company executives.  Many drivers and trucking companies routinely falsify their written logs.  This practice is so prevalent the logs are derisively referred to as “lie logs” in the trucking industry.  The black box data can be used to discredit falsified written logs or to contradict the testimony of the driver or trucking company representatives during deposition or at trial.

At NST Law, we know that black box evidence is usually an indispensable part of establishing liability on behalf of a person who has been seriously injured or killed by the negligence of a truck driver or trucking company.  Several NST Law attorneys have been nationally recognized by Super Lawyers, which rates the top 5% of lawyers in the country.

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Unique Challenges in Initiating Medical Malpractice Claims in Tennessee

Sunday, March 14th, 2010

A medical malpractice lawsuit may be pursued when the negligent act or omission by a doctor or other medical professional causes the injury or death of a patient.  Medical malpractice cases can be amongst the most difficult injury related cases to litigate.  There are unique challenges that include special rules and time limits that apply to medical malpractice litigation.  This article is designed to provide an overview of these special challenges in initiating a medical malpractice case.

Health care and insurance providers have lobbied for changes in medical malpractice laws making it much more difficult to recover against a doctor or other medical professional for injuries suffered from medical malpractice.  Many states have enacted caps that limit recovery of damages and attorney fees in a medical malpractice case.  Limits on recovery for non-economic damages have become common in many states.  Non-economic damages include compensation for pain and suffering, physical impairment, disfigurement and other forms of non-pecuniary loss.

The cap on non-economic damages in California, for example, is $250,000.  Lost future earnings are typically the most significant portion of economic damages.  Where the victim of medical malpractice is a young child, elderly person or has low earning capacity, the cap on non-economic damages can effectively prevent someone who suffers catastrophic injury or even death from seeking relief.  Because medical malpractice cases are very expensive to litigate, a cap on non-economic damages can mean that a plaintiff whose earning capacity is low or difficult to establish will not be compensated for his injuries.

Tennessee has not yet relented to health care and insurance industry lobbyists.  Advocates of tort reform champion calls for non-economic caps almost daily in the media.  Tennessee remains one of the states where medical malpractice claims are still viable against negligent health care professionals.

Another barrier that is designed to prevent medical malpractice lawsuits is the statute of limitations, which is the time within which a medical malpractice lawsuit must be initiated.  A medical malpractice action based on either personal injury or wrongful death must be brought within one year of the time the claimant discovered the injury under Tennessee medical malpractice law.  Tenn. Code Ann. Section 29-26-116 (1980).  Regardless of when the plaintiff discovers the injury, no action may be brought more than three years after which the negligent act or omission occurred unless it involves a foreign object.  Id. A plaintiff who fails to initiate an action under Tennessee medical malpractice law within this narrow time window is permanently barred from filing a medical malpractice lawsuit.

Other Tennessee medical malpractice law requirements can also complicate compliance with the statute of limitations in a Tennessee medical malpractice case.  Since some medical facilities are owned by public entities, an injured person may also have to comply with additional time limits that are applicable when making a claim against a governmental entity.  These time limits are usually even shorter than those imposed by the statute of limitations.

Tennessee’s Medical Malpractice Act also requires written notice to each health care provider against whom a claim may be filed at least 60 days before initiating a Tennessee medical malpractice lawsuit by filing a complaint in civil court.  This requirement further complicates a plaintiff’s obligation of meeting deadlines for initiating an action under Tennessee medical malpractice law.  Deadlines for initiating a medical malpractice lawsuit and other prerequisites with timing requirements make consulting a Tennessee medical malpractice lawyer imperative as soon as one discovers he has been injured by a doctor or other medical provider.

Even after a medical malpractice case has been initiated by filing a complaint in civil court, a person must overcome another obstacle before proceeding under Tennessee medical malpractice law. Once the complaint initiating the medical malpractice case has been filed, the plaintiff has 90 days to file a Certificate of Good Faith.  The Certificate of Good faith basically states that the plaintiff has consulted one or more medical experts who have provided a signed written statement that the plaintiff has a good faith basis to proceed or that from available facts there is additional information that is material to resolving the matter that cannot be ascertained from information reasonably available.

There are many unique obstacles and requirements that must be overcome if someone seeks compensation under Tennessee medical malpractice law even at the initial stages of the civil lawsuit.  A qualified Tennessee medical malpractice lawyer will be familiar with these special timing and procedural requirements.  The law firm of Nahon, Saharovich & Trotz, PLC, also known as NST, is the largest personal injury firm in Tennessee.  NST also has been acknowledged by Super Lawyers as one of the top 5% of law firms in the United States.  If you or someone you love has been injured by the negligence of a medical provider, you should contact NST today.

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Employer Liability for Cell Phone Use in Tennessee Car Accidents

Friday, March 12th, 2010

Cell phone use is growing at a staggering rate as over 190 million people used cell phones in the United States during 2005.  This amounts to 2 out of every 3 people using a cell phone.  As cell phone use has risen, the use of cell phones while driving has also risen to the point that now 40% of all cell phone use is by motorists.  It is hardly surprising that the combination of driving and cell phone use has lead to over 330,000 auto accident injuries and 2,600 deaths per year.  An employer may be liable for the cell phone use of his employee, which results in injuries to a third party depending on the circumstances.

If an employee uses his cell phone while driving, it increases the probability the employee will be involved in an accident.  An employer can be liable for injuries to a third party resulting from the negligence of an employee under the doctrine of vicarious liability if the accident occurs in the “scope and course of employment.”  This is a legal term of art with lots of room for skilled attorneys to disagree.  However, if an employer encourages the employee to use his cell phone while driving or knows the employee will use the cell phone while working, a court may find the employee is using his phone within the course and scope of his employment.  If the employer provides a cell phone to the employee with no policy prohibiting use of the cell phone while driving, a court may also find the employer liable.

Even if the employee is making a personal call, the employer could face liability for injuries resulting from an accident under Tennessee car accident law if the employer has provided the cell phone or knows the employee is using the cell phone during work related errands.  A Tennessee personal injury lawyer will seek discovery of a company’s policies and procedures regarding cell phone use in determining whether a driver’s employer should be named in a civil lawsuit.  Below is an illustrative list of policies that may be relevant to an employer’s liability.

  • Written policy limiting or prohibiting cell phone use while driving
  • Visible warnings on company cell phones and vehicles
  • Policy requiring employees to pull over and stop when using a cell phone
  • Mandate employees use hands free headsets
  • Comply with all laws regarding cell phone use while driving
  • Limit cell phone use to short brief calls
  • Prohibit all personal calls
  • Make employees sign a written policy regarding cell phone use with disciplinary consequences

None of these steps will necessarily prevent liability for injuries caused by an employee’s cell phone related Tennessee car accident.  The absence of such policies may be used by a Tennessee personal injury lawyer to establish that the employer did not take sufficient steps to prevent a cell phone related accident by his employee.  An employer in such a situation may have the “deepest pockets” and may be able to fully compensate an injured victim.   In a recent Florida case, a jury awarded a 78-year-old woman and her husband $20.98 million for injuries that left her on a ventilator for life based on evidence introduced at trial that the employee had been on his cell phone at the time of the accident.

The question of who may be responsible for compensating one who is injured in a Tennessee car accident where the other driver is distracted while using a cell phone can be complicated.  A qualified Tennessee car accident lawyer will be familiar with statutory filing deadlines and will seek evidence regarding a company’s policies concerning cell phone use by employees.  The Tennessee law firm of Nahon, Saharovich & Trotz, PLC, also known as NST, is the largest personal injury firm in Tennessee.  The firm has been recognized by Super Lawyers as one of the top 5% of law firms nationally.  If you or someone you love has been injured in a cell phone related accident, you should contact NST today.

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Product Liability for Toyota Acceleration Accidents in Tennessee

Tuesday, March 9th, 2010

The National Highway Traffic Safety Administration recently indicated that a total of 34 auto accident fatalities have been linked to acceleration related auto accidents related to defective brakes, defective floor mats and defective gas pedals in certain Toyota vehicles.  Toyota has recently recalled 8.5 million vehicles because of such product defects.  If you are involved in a Toyota acceleration auto accident, a Tennessee personal injury lawyer can navigate the complex realm of Tennessee car accident law.

Product liability law provides compensation for physical injuries and property damage resulting from defective and unreasonably dangerous products as well as the failure of manufacturers to warn consumers of the risk posed by their products.  A Tennessee car accident lawyer can seek compensation on behalf of someone injured in an acceleration auto accident resulting from a defective part from anyone in the manufacturing chain including the manufacturer of the component parts, an assembling manufacturer, the wholesaler and the retailer.

Product liability claims are based on negligence, strict liability or breach of warranty theories.

  • Negligence is the failure to take reasonable ordinary care.
  • Breach of warranty involves an express or implied promise that a product is free from defects.
  • Strict liability does not mean that the defendant is automatically liable.  A Tennessee personal injury lawyer must show that the product was defective when it left the manufacturer’s control, that the product was unreasonably dangerous and that the defect caused the injuries.

A Tennessee car accident lawyer will present evidence that the product has one of three defects:

  • Design defects are inherent even before the product is manufactured.
  • Manufacturing defects occur during the manufacturing process.
  • Marketing defects involve inadequate instructions and/or failure to warn of dangers associated with a product.

A Tennessee car accident lawyer may use any of the claims and defects above in pursuing a product liability lawsuit in a Toyota acceleration auto accident resulting in injuries.  If you or a loved one is injured in an acceleration auto accident, the Tennessee law firm of Nahon, Saharovich & Trotz, PLC, also known as NST is here to assist you.  NST is the largest plaintiff personal injury firm in Tennessee and has been recognized by Super Lawyers as being in the top 5% of law firms nationally.  If you or someone you love has been injured in a Toyota acceleration auto accident, you should contact NST today.

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Social Networking Impact on Personal Injury Claims

Thursday, March 4th, 2010

Social network sites are growing at a phenomenal rate and the trend toward detailing one’s daily activities for the world to see is starting to have a significant impact on personal injury claims.  Over 25% of all internet users visit social networks like Twitter, Facebook and MySpace at least once a month.  33% of internet users have made a purchase based on social networking sites.

The tendency of plaintiff’s to provide constant details about one’s daily activities on social network sites is starting to have a negative impact on civil litigation where people have suffered injuries due to the negligence of another person.  Tennessee personal injury lawyers advice clients who have a potential personal injury claim to “keep their mouth shut.”  Now Tennessee personal injury lawyers are extending this advice to social network sites in Tennessee personal injury cases. Private investigators, insurance companies and defense lawyers are increasingly looking to social networking sites for information about plaintiffs in personal injury cases.

Insurance companies and investigators are searching social network sites looking for information to help build a defense or reduce potential damage claims.  They may look for information about how an accident happened and who caused it including an admission by the injured person that he or she was at fault.  Insurance companies also look for information posted on social networking sites that can be used to undermine the credibility of a plaintiff by contradicting the injured person’s version of how the injuries occurred.  In other cases, information on a plaintiff’s social network page may be used simply to embarrass the plaintiff and make the jury look less sympathetically at the plaintiff.

Some examples of the impact of a plaintiff’s social media posting are provided below:

  • A woman claimed she was disabled but a judge admitted Facebook photos of the woman dancing.
  • An insurance company downloaded and introduced Facebook video of a woman doing the limbo on a cruise after she claimed she could not work because of a back injury.
  • A judge ordered that information regarding the frequency of one’s Facebook use be introduced where the person claimed brain injury.

In other cases, the information on a plaintiff’s social network page may be used simply to embarrass the plaintiff and make the jury look at the plaintiff less sympathetically.  The insurance company may look for information to show the plaintiff is a “bad person” by showing the plaintiff doing something illegal or immoral.  While such evidence is not always admissible under Tennessee personal injury law, the defense may try to use it to make the jury view the plaintiff in a more negative light.

Conversely, the Tennessee personal injury lawyers at Nahon, Saharovich & Trotz, PLC (NST Law) can use information posted on a social media site by the defendant in a personal injury case.  A woman who was involved in a car accident while under the influence of alcohol was involved in a fatal accident in which her boyfriend was killed.  The judge had decided to treat the woman as a juvenile meaning less harsh sentencing and post-conviction consequences.  The judge discovered a picture taken of the woman during a Florida vacation several months after the accident captioned “Drunk in Florida.”  The judge was so disturbed by the picture he decided to sentence the woman as an adult.  It is reasonable to assume that a civil jury might also be inclined to consider such photos when deciding on damages including punitive damages.

The experienced Tennessee personal injury lawyers at NST Law advise their clients to stay away from their personal blogs and social media sites in the wake of being injured in a Tennessee accident.  Any pictures or content that could portray the plaintiff in a negative light should be pulled down from social media sites.  However, it is not enough simply to pull the information down from one’s own social media site.  The plaintiff also should have all online friends purge the plaintiff from their accounts.  If a plaintiff’s photo is tagged, it is still accessible by searching.

The lawyers of NST Law also will investigate the information and pictures on a defendant’s social media pages.  At NST Law, we pride ourselves on utilizing cutting edge technology to assist our clients in seeking compensation for their injuries.

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Tennessee ATV Accident Lawyers | Tennessee ATV Accidents Attorneys

Monday, March 1st, 2010

Litigating ATV Accidents in Tennessee

ATV use is on the rise in the U.S. leading to an increasing trend of accidents involving catastrophic injuries and deaths.  ATVs are widely used for farm work and recreational activities.  Laborers on farms often use ATVs to feed and keep track of livestock and haul supplies.  Many teenagers use ATVs for recreational activities in off-road and recreational areas including rural terrain.  However, certain characteristics of ATVs greatly increase the risk of catastrophic injury or death with ATVs.  More than 150,000 individuals saw their ATV use land them in emergencies rooms during 2007 alone according to the U.S. Consumer Product Safety Commission.

ATV cases are generally litigated under theories of negligence of the driver of the ATV or the person supervising the operation of the ATV.  An experienced Tennessee ATV accident lawyer will also pursue a claim against the manufacturer, designers, developers and/or engineers of the ATV based on its unreasonably dangerous design or construction.  The Tennessee ATV accident lawyers at Nahon, Saharovich & Trotz, PLC (NST Law) may pursue both negligence and product liability theories in pursuing a case for catastrophic injuries or wrongful death.  A person who negligently entrusts an ATV to someone who is too young or inexperienced to safely operate the vehicle may be responsible for a resulting accident that causes serious injuries.  The Tennessee ATV accident lawyers at NST Law will also investigate the design and manufacturer of the ATV in order to pursue a claim against the manufacturer, designers, developers and engineers of the ATV because of its inherent instability.

The most typical accident resulting from ATV use involves flipping or rolling the ATV.  When the ATV flips or rolls, the driver and/or passenger can be thrown or pinned underneath the ATV.  Another common factor in ATV accidents is the practice of carrying a passenger on the rear of the vehicle.  ATVs are not designed to have a passenger on the rear of the vehicle and carrying a passenger this way can increase the risk of injury to both the passenger and driver.  ATVs lack of stability compared to other vehicles creates a greater risk of flipping or rolling.

The ATV accident lawyers at NST Law are committed to thorough and detailed preparation.  At NST Law, we use a broad range or experts and the latest techniques in preparing courtroom models, computer simulations and other cutting edge technology to make a persuasive and vivid impression on the judge and jury regarding the reasons for an ATV accident.

ATV accidents may result in serious injuries including traumatic brain injury, neurologic injuries, spinal cord injuries, neck injuries, severed limbs, amputations, fractures and dislocations.  Many injuries that result from non-fatale ATV accidents involve catastrophic life changing medical problems including head and spinal injuries, which often require ongoing physical therapy and rehabilitation.  A recent study analyzed the cost of long-term skilled care for six individuals injured in ATV accidents.  The study concluded the cost of providing such care until the six individuals reached 65 amounted to $11.5 million.

The cost of treatment and rehabilitation from injuries suffered in an ATV accident can be devastating.  The ATV accident lawyers at NST Law will seek compensation for current and future medical treatment and rehabilitation expenses. NST Law attorneys who have been recognized by Super Lawyers, which rates the top 5% of lawyers in the country will also seek lost wages, compensation for lost future earnings and other out of pocket expenses.  NST Law will also seek damages for your pain and suffering as well as other compensation authorized under Tennessee ATV accident law.

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