You Are Not Alone In Your Fight For Justice
April 16, 2012

Recovery of Auto accident property damages in Texas

In our last two blog entries, we have discussed measures of valuating damages in Texas auto accident cases including market value and replacement value . Again, these types of discussions are not limited to car wrecks - these forms of damages are applicable in any claim for damages to personal property.

The third category of valuation damages is the actual or intrinsic value to the owner, which is a type of damages that is only applicable where market or replacement value cannot be calculated. For example, property that provided for the comfort and well-being of the owner does not have market value, but may have intrinsic value. Common examples of items with actual or intrinsic value are clothing, furniture, and photo albums.

As you can probably conclude, actual or intrinsic value is generally not used to measure damages in auto accident cases, unless there are some very unique circumstances. Intrinsic value is the value of the property to the owner, excluding sentimental value (another category of damages we will cover later on). The actual value of an item is not restricted to the item's market value at the time of loss. Basically, it's incredibly difficult to put a market or replacement valuation on household goods, clothing, and personal effects. For example, in one case a Texas court ruled that damages to the contents of a mobile home do not need to be based on market value.

To prove actual / intrinsic value, the injured party will testify about the value of the damaged property as the owner. Generally, various forms of evidence can be introduced to clarify the property's value including its condition before the damaging event, the original cost, age, level of use , cost of replacement, and possibly experts.

A San Antonio negligence attorney will actually state in the petition for damages that market and replacement value measures of value will not adequately compensate an injured plaintiff. Generally, courts do not require an injured party to prove household goods, clothing, and personal effects have no market value.

What is interesting is the ever rising use of online auction sites like Ebay . The idea that somehow household goods, clothing, and personal effects may not have market value or a replacement value may be going the way of the dinosaur. An experienced Texas injury lawyer will confer with his clients about the prices certain household goods may be fetching on these online auction sites.

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The final category of valuation damages is sentimental value, the fallback where market value, replacement value , and actual value do not apply. Keep in mind that sentimental value takes into account the owner's special feelings about the items. Examples of damaged property for which Texas courts have allowed the recovery of sentimental value include family heirlooms, items belonging to grandparents or earlier generations, pictures, birth records, trophies, and wedding pictures. Baseluos Law Firm will confer about the client's sentimental feelings and put the opposing party on notice that the plaintiff will be seeking sentimental damages.

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April 8, 2012

Compensation for Personal Property Damages in San Antonio Texas Auto Accident Cases

In our last blog entry , we discussed recovery of market value in auto accident cases . Today, we will discuss methods of proving market value and other methods of proving valuation of your damaged vehicle. These types of methods are not just applicable to auto accidents - they can be applied to any type of property damage from negligence.

To prove market value (defined as the difference in the value of the item immediately before and immediately after the collision), an injured party can offer either his/her own personal testimony or that of an expert provided the testimony deals with market value as opposed to sentimental value. The witness must be familiar with the market value of the property and the value must be measured at the time of the auto accident, not the value at time of trial.

A market value witness can introduce common appraisal guides like Kelley Blue Book which publishes automobile vehicle valuations as well as before and after photographs of the damaged vehicle.

Another critical component to proving market value is to introduce the repair bills to prove the difference in market value before and after the collision. The argument here is that the vehicle repair would ultimately make the vehicle like new or restore the car back to full working mode. Therefore, the cost of repairs becomes the primary evidence of loss in market value. The collision repair estimates then represent the difference in value before and after the car accident.

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There are certain proposed measures of damages which the Texas courts have ruled are inadmissible as a means of proving market value including the purchase price of the vehicle (cars depreciate) and any amount remitted by the insurance company for losses.
If market value is not a viable option, the next category of valuation damages is replacement value, meaning the cost of replacing the car or reproducing the damaged goods. The cost of replacement is reduced by any enhancements or upgrades to the vehicle which were not present before the accident. In addition, the damages must be reduced by the depreciation of the original vehicle and the salvage value. So a vehicle that is 10 years old which is totaled in a San Antonio car accident could theoretically be replaced by a newer vehicle. However, replacement value would be reduced by the decrease in value due to depreciation and any salvage value of the original property.

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April 1, 2012

Types of Property Damages in Texas Car Accident Cases

In a simple San Antonio car accident where personal injuries are minimal, the issue often becomes proper valuation of property damages to the vehicles involved. There are two types of damages to personal property - valuation damages and repair damages. Most people assume that the value lost from a car wreck is strictly limited to the cost of repair or replacement value. In most cases, those methods are proper valuations, but there may be other ways to value personal property and make valid claims on auto accident damages.

In a personal injury car accident suit, determining market value of the damaged vehicle is the most common form of evaluating damages. If market value cannot be determined, other methods exist including replacement value, actual value, and sentimental value. Texas courts have generally ruled that actual or extrinsic value may be used only when market value or replacement value are unable to be determined.

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So what exactly is market value ? Texas cases define market value as the price the vehicle would fetch if it were offered for sale. In the event of a car accident, the market value is the difference in value of the vehicle immediately before and after the collision. In cases where the vehicle is completely destroyed, then the damages are measured as the value of the vehicle just before the accident minus the salvage value. This is why that more often than not, in the case of older vehicles, after an accident , the most you will receive from the insurance company is the salvage value of the vehicle where the repair costs far outweigh the market value.

The county where the auto accident occurred is the marker for determining market value. As such, an Austin car collision might be valuated differently than a San Antonio auto damage case. I have referred to some different ways for determining valuation damages. There are certain types of property that will be subject to this market valuation method i.e. the difference in the value of the item immediately before and after the damage.

For example, Texas courts have stated automobiles, machines and equipment, and even animals are subject to market valuation methods for loss valuation. Interestingly, an owner can recover for the death or injury of a beloved animal in a San Antonio auto collision. Although many owners who lose an animal in a car accident would vehemently argue for the sentimental value of their treasured animals, the recovery for an animal's death is limited to the market value. Sometimes, in the cases of animals that have high monetary value for their special characteristics or usefulness, the owner can bypass market value and obtain a greater recovery. For example, seeing-eye dogs or dogs with unique breeding potential have been assessed actual values based on their monetary value. Unfortunately, owners cannot obtain a monetary recovery for the pain and suffering related to an animal's injury or death.

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March 9, 2012

Benefits of Hiring an Attorney for an Uncontested Divorce in Texas

Divorce is a difficult period in anybody’s life. In our area, many couples wish to avoid the expense and emotional toll of fighting throughout the process and feel that they can come to a mutual understanding without the need to hire a New Braunfels divorce lawyer for an uncontested divorce. However, there are several crucial issues related to any divorce, including uncontested divorce, that a qualified attorney will identify and address to avoid running into inevitable problems in the future. Not hiring an attorney is rarely advisable. This is particularly true the longer the marriage lasts, when there are children involved, and the more assets accumulated.

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Usually for a flat fee, a qualified San Antonio uncontested divorce lawyer will explain issues related to property division, child custody and support, spousal support, preparation of the divorce petition and final decree, name changes, tax issues and other related matters. Addressing all of these questions from the outset with an attorney will save time and money in the future when these matters inevitably come up if left ambiguous or unaddressed.

Property Division

Even though spouses may think that they have worked out an acceptable division of property for both sides, a lawyer may help point out issues that parties don’t realize exist. For example, it is important to know that despite a divorce decree that assigns a marital debt to one spouse, creditors can still seek payment of the debt from both spouses since they are not bound by the decree. A divorce attorney will help identify better solutions that will not expose clients to debts and other liabilities that their ex-spouse has agreed to undertake.

In other cases, an ex-spouse may fail to disclose assets that make the agreed-to division disadvantageous for the other spouse. A good attorney will protect their client by requiring that both parties file sworn statements of their assets that can later be used to prove that fraud in obtaining the divorce settlement. For more discussion of these issues, please see our related blog posts related blog posts here.

Child Support and Custody

Child support and custody issues are complicated and dealing with the process is made easier with the advice of an attorney. Legal professionals in our area can explain child custody laws in Bexar County and the concept of conservatorship. This includes issues like which conservator has the right to determine the child’s residence, what geographic restrictions Bexar County courts place on this determination, the weight of the child’s preference, the difference between managing and possessory conservators, and a host of similar issues.

A San Antonio uncontested divorce lawyer will be especially helpful in navigating the intricacies of the Texas Family Code as it relates to child support and medical support. The attorney will help their client calculate the amount of child support according to a specific formula set out by the Code. A lawyer can also explain support modification and issues like support avoidance by stopping work and Employer’s Orders to Withhold. In addition, in uncontested divorce it remains crucial to discuss medical support for the child, including medical insurance.

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March 1, 2012

10 Things to Think About If You Are Contemplating an Uncontested Divorce In Texas

Uncontested divorces are more common than ever these days. Apart from costing less than a contested divorce, uncontested divorce may also be much less complicated if it is right for the participants and the situation. The following is a list of things to keep in mind if you are contemplating an uncontested divorce in Texas.

1. Always consider hiring an attorney. Many websites offer easy, do-it-yourself uncontested divorces. However, even uncontested divorces can be complex for those unfamiliar with Texas family law. When contemplating any type of divorce, it is important to consider hiring an experienced San Antonio uncontested divorce lawyer to do things right the first time. For a low flat fee, a divorce attorney will lead you through the process of an uncontested divorce, including the preparation of the petition, waiver of service, and final divorce decree. They can also prepare a Qualified Domestic Relations Order (QDRO) and military retirement order (DRO), should either or both be needed.

2. Is an uncontested divorce right for you? Many people find that their relationship with their soon-to-be former spouse is amicable enough for an uncontested divorce. For an uncontested divorce to work smoothly spouses must have a high level of trust in each other, be convinced that they have worked out major issues, and can easily work out any issues that may arise during the divorce process and beyond.

3. Have you worked out the major issues? Both spouses should agree to major issues in an uncontested divorce, and should be confident that they will be able to solve any major disagreements on these matters should they come up in the future. Major issues include division of community property, child custody, and child support.

4. Understand and divide your property: A divorce attorney will provide a guide on how to divide the marital estate, including assets, debts, and taxes. This may include an inventory appraisement to ensure that both parties have the same understanding of the property acquired during the marriage and the property that should be considered the separate property of each spouse. Even in situations where attorneys advise their clients to sign a waiver of discovery of their spouse’s finances, an inventory appraisement will ensure that both parties are on the same page and that the divorce decree includes all of the marital assets.

5. Discuss and understand issues concerning children: A divorce attorney will help a client understand major issues concerning children including child support, conservatorship, possession, and health insurance. If contemplating an uncontested divorce, spouses must come to an agreement on these and other child-related issues.

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6. What is the process involved in a Texas uncontested divorce? The divorce process begins when one party serves the other party with a Petition for Divorce. For an uncontested divorce, the other party will sign a waiver of service. The attorney then prepares the final divorce decree, which will be signed by both parties. After 60 days, the attorney presents the decree in court and it is approved and signed by a judge.

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July 5, 2011

Burden of Proof in Texas Criminal Cases

In a Texas criminal case, the State of Texas represented by the District Attorney's office, possesses the highest burden of proof under the law. A San Antonio criminal defense attorney will explain during jury selection all of the burdens of proof separately.

The first basic element is reasonable suspicion, which is the element needed for the police to stop and detain a person. The attorney will enlighten the jury by explaining how little it takes for a police officer to legally effectuate a stop. The next level of proof is "probable cause", which is more than reasonable suspicion. Probable cause is all that is necessary for a criminal defendant to be arrested, booked, set on bond, and stand for trial.

In its most basic form, probable cause essentially means that police are required to arrest someone if that person could be guilty of committing a criminal offense. The law encourages a police officer to err on the side of safety. When the arrested person does not contest the charges, then the court resolves the case usually through a plea agreement. However, when an arrested person disagrees with the charges, then the first time he is entitled to have a group of independent citizens review the case is when a jury is chosen. In Texas, the judge does not prescreen a case, so the only people who have reviewed the case are law enforcement and the district attorney.

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It is important to note that when a jury walks into the courtroom, their level of respect for the judge, law enforcement, and the district attorney outweigh their respect for the defense counsel. Yet it is important to note that the role of the judge is to decide the law, and he does not know the facts of the case before the trial. The district attorney simply presents the facts received from law enforcement to the jury.

The next burden of proof to be explained during voir dire (a unique Texas name for jury selection) is preponderance of evidence, This is the common burden of proof in civil courts and it means that a jury must find that one side has presented evidence of greater weight than the other side. The unique analogy is that of the scales of justice - enough evidence is presented to tip the scale or there was more than 50% evidence favorable for one side.

The next level of proof is clear and convincing evidence. A San Antonio criminal defense lawyer will question how many jurors have children. A key question to ask jurors during voir dire how much evidence would be necessary would be necessary for the government to remove children from the home. Most jurors would reply that government would have to prove beyond doubt before taking children. Yet the standard of clear and convincing evidence needed to terminate parental rights and take a child away from the home is a lesser standard than the standard of beyond a reasonable doubt. A common question to ask when trying to describe beyond a reasonable doubt is whether someone is willing to bet their own children that a person is guilty beyond a reasonable doubt.

"Beyond a reasonable doubt" is quite simply the highest burden of proof in the courts today and it is dictated on the government by the Constitution. Each juror should voice their agreement that the burden of proof of beyond a reasonable doubt should be placed on the state and the jury plans to hold the government to that burden as required by the US Constitution.

Each crime contains specific elements on which the government bears the burden of proof. If the state cannot prove each and every element of the crime beyond a reasonable doubt, then each juror must be willing to return a verdict of Not Guilty. It is important in a Texas criminal defense case that the jury believes it is permissible to find someone not guilty when the law requires it, and that their jury service is no less valuable if they returned a Not Guilty verdict.

A 'Not Guilty' verdict does not mean that the jury disagreed with a law enforcement officer's decision to arrest. The jury can vote Not Guilty and the police officer would still have done a commendable job.

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June 24, 2011

Association between Flu Shot / Influenza Vaccine and Guillain Barre Syndrome (GBS)

The most common vaccine shot associated with the development of Guillain Barre Syndrome (GBS) is the influenza flu shot. Most people receive the influenza vaccination to reduce the risks associated with the flu. New influenza vaccines are formulated every year due to ever changing influenza viruses. Since 1979, the vaccines are trivalent, using strains of influenza A (H1N1), influenza A (H3N2), and influenza B viruses.

The first known association between GBS and the flu shot became apparent during a mass vaccination program in the United States with a swine influenza vaccine in 1976-1977. It should be noted that in 1976, an influenza outbreak occurred in Fort Dix NJ. The outbreak was traced to swine-type influenza A (H1N1). In reaction to the outbreak and the danger from an epidemic from swine influenza, the United States Department of Health and Human Services instituted a mass vaccination of the US population. Approximately fifty (50) million adults were vaccinated during the short three (3) month interval from October - December 1976. Of the mass numbers vaccinated, there were over five hundred (500) cases of Guillain Barre Syndrome including thirty (30) deaths. A study of the incidence of GBS discovered that there was an elevated risk of Guillain Barre Syndrome within six to eight (6-8) weeks of vaccination. Following the elevated GBS risk, the government ordered the cessation of the swine flu vaccination program in early 1977. A GBS flu shot injury attorney will refer to the swine flu incident as the strongest evidence of a causation link.

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Other studies have confirmed a causal relationship between the 1976 swine influenza vaccine and GBS onset in the adult population. According to the Vaccine Adverse Events Reporting System (VAERS), there was an increase in GBS reports in 1992-1993 and 1993-1994 associated with the influenza vaccine, with data suggesting an increased risk within six (6) weeks following influenza vaccination. VAERS is a system employed by the United States for rapid reporting of adverse events following vaccination. The US Federal Court of Claims often inquires as to whether a VAERS report was filed following an adverse reaction to a vaccination.

An evaluation of trends of reports to VAERS of Guillain Barre Syndrome following the flu shot in adults reflected that there was a possible causal association between GBS and influenza vaccine. There was an average of onset of GBS about two (2) weeks after the vaccination and few cases of preexisting illnesses that could possibly explain the onset. A Guillain Barre vaccination injury lawyer will emphasize the timing of the onset of peak symptoms.

Between 1990 through 2005, there were over one thousand (1000) cases of GBS reported after vaccination. In the majority of cases, symptoms appeared within six (6) weeks of vaccination. GBS cases were most prevalent following the influenza vaccine followed by the Hepatitis B vaccine. For adults, there was a greater incidence of Guillain Barre under 65. The peak GBS symptoms appeared within two (2) weeks post vaccination. There appears to be a bell curve with greatest number of incidents reaching a peak at two (2) weeks with declining numbers approaching the six (6) week mark post vaccination. Over eight hundred (800) cases of GBS were reported in the US between 1990 through 2009 following the flu shot of which about half were men.

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June 1, 2011

Guillain Barre Syndrome (GBS) and its link to the Flu Shot / Vaccination

Guillain Barre Syndrome (GBS) is a clinical neuromuscular syndrome that can cause paralysis (temporarily and sometimes permanently) in individuals who receive the influenza / flu vaccination. Generally, GBS is characterized by weakness and numbness. Some individuals complain of a tingling sensation in the legs and arms with minor to major loss of movement in the legs, arms, upper body, and face. Some people will show a contortion of the face from GBS similar to the physical drooping from a stroke. GBS usually starts as a ascending paralysis characterized by weakness in the legs, moving its way up to the upper limbs and face with a loss of deep tendon reflexes.

For the most part, Guillain Barre Syndrome is triggered by an upper respiratory or gastrointestinal infection although the etiology (cause) of GBS is not exactly known. It can be a potentially deadly disorder and affects up to 2 people per 100,000. Unfortunately GBS has no known cure although several treatments can alleviate symptoms and lower the length of the disorder. For the most part, people recover fully from severe cases of GBS.

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There is great debate in the vaccine community about the link between the flu vaccination and Guillain Barre Syndrome. The Vaccine Court for the most part has accepted the theory that the influenza vaccination can replace upper respiratory or gastrointestinal infection as the triggering factor for GBS and the Miller Fischer variant of GBS.

When filing a vaccine compensation claim, a GBS flu vaccine attorney will investigate the presence of any antecedent upper respiratory or gastrointestinal infection within six (6) weeks prior to symptom onset. Most individuals do report experiencing some form of infectious illness prior to developing Guillain Barre Syndrome. Almost 70% of GBS cases are associated with some prior acute infection by various bacterial viruses. In a flu GBS case, the influenza vaccine activates the immune system against components of the nervous system similar to activation by viral or bacterial infection in non-vaccinated GBS cases. Many experts believe that the most common mechanism for development of Guillain Barre Syndrome is molecular mimicry in which the body produces cross-reactive immune responses.

There are certain variations of GBS, the most prominent of which is known as the Miller Fisher variant. Patients with the Miller Fisher syndrome typically project symptoms of ataxia (gross lack of coordination of muscle movements), ascending numbness, and facial palsy and these symptoms can very well occur after taking the flu vaccine. A Guillain Barre injury lawyer will look at the possibility of any infections prior to the onset of Miller Fisher syndrome. Many GBS patients will develop a disabling chronic fatigue syndrome and sensitivity to heat that may become permanent. The disabling fatigue can be particularly troublesome by interfering with activities of daily living and occupational duties. A vaccine compensation lawyer can make the argument that a person whose occupation is impaired by the fatigue syndrome deserves economic damages in addition to pain and suffering.

Sometimes in filing a vaccine compensation claim , the government attorneys will try to challenge a Miller Fisher claim, claiming that there are differences between Miller Fischer and general GBS. An expert neurologist will be able to dispel this argument by showing there is no fundamental difference between the pathogenesis (development of the disease) of Guillain Barre Syndrome and the Miller Fisher variant. Both disorders share similar patterns of evolution, recovery, and symptom characteristics.

In our next blog entry, we will discuss more in detail how the influenza vaccination causes Guillain Barre Syndrome. If you suspect your GBS is linked to the flu shot, contact a flu shot vaccine injury attorney as soon as possible. There is no need to go a local attorney because a GBS flu injury firm can handle cases nationwide.

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May 7, 2011

Principles of Vaccine Injury Compensation

If you believe you have been injured by a vaccine, it is imperative that you contact a vaccine lawsuit attorney . There is a three (3) year statute of limitations on vaccine compensation claims.

When a person's vaccine injury is listed in the vaccine injury table and the injury occurred within the time provided in the table, then causation (the link between the vaccine and the injury) is presumed. A person may still receive compensation when the injury is not listed in the vaccine injury table, but the petitioner must show that their condition was caused by the vaccine (known as the preponderance of the evidence standard).

A vaccine injury lawyer employs several methods to demonstrate causation by a preponderance of the evidence. First, the attorney may show via experts and scientific research that it is medically plausible for the vaccine to have caused the injury. For example, in cases of GBS flu injury, a common scientific theory used by neurologists is molecular mimicry. Second, it is helpful that there is peer-reviewed medical literature supporting an association between the vaccine and alleged disability. The vaccine lawyer may also demonstrate that the petitioner's injury is medically accepted as a reaction to the vaccine and that the injury took place within a medically accepted window of time after the vaccine to reflect causation.

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Finally, a good vaccine injury attorney will also seek to show other potential causes were not present. The most common way of demonstrating alternate causes are not applicable is to demonstrate via prior medical records that the petitioner did not suffer from any preexisting conditions. For example, in GBS flu vaccine injury cases, the lawyer will show via prior medical records that the injured party did not suffer from a preexisting upper respiratory or gastrointestinal infection that could cause GBS.

Other key documents in a vaccine injury claim include a affidavit from the injured party regarding timing and severity of symptoms, medical records, diagnoses of treating doctors, and VAERS (Vaccine Adverse Event Reporting System) data. To successfully obtain compensation, seek professional vaccine injury consultation immediately.

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May 1, 2011

Vaccine Injury Compensation Program Basics

As more Americans take vaccines from injury into well into their senior years, injuries from vaccines will inevitably follow. An ensuing injury of Guillain Barre syndrome from the flu vaccine is one of the most common claims.

The National Vaccine Injury Compensation Program was established to provide compensation to those individuals who have suffered an illness, disability, injury, or even death from a vaccine. The standard by which the Court of Federal Claims determines a link is known as a preponderance of the evidence. Simply put, is it likely that the injury complained of was in fact caused by the vaccine.

To determine causation in a vaccine injury case, the special master (the term given to what is traditionally the judge in most civil matters) makes a finding of causation based on medical records and / or medical opinion. Simple claims of injury by the complainant or petitioner are not enough to warrant compensation. Besides examining medical and scientific evidence, the special master pays heavy attention to diagnoses or conclusions made by medical professionals regarding causation of the petitioner's conditions. Medical professionals can also comment on residual long-term effects of the vaccine injury.

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Many petitioners often find it difficult to get their treating providers to write an affidavit of causation linking the illness to the vaccine. Some treating providers do not feel qualified enough to make the connection, or they may have ties to the pharmaceutical industry, or they are leery of potential malpractice issues (although such fears are often unwarranted). In such cases, a vaccine injury attorney can draw on various experts including board certified neurologists, who can review the records and draft strong expert reports in favor of the petitioner.

The special master also reviews the results of evaluative tests such as CAT scans and MRIs , especially as they regard abnormal effects of the vaccine on brain activity. It is important to note that such evaluations are not binding on the special master, but they are parts of the overall calculation.

When relying on the Vaccine Injury Table , and whether the symptoms of injury occurred within the time period prescribed by the table, the special master carefully reviews the medical records to determine if whether the symptoms manifested themselves during the time period after the vaccine.

A vaccine injury lawyer must demonstrate the petitioner did not exhibit symptoms of disability or conditions prior to administration of the vaccine. Documentation of medical injury and short-term and long-term pain and suffering and economic damages are keys to a successful vaccine lawsuit .

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