San Antonio Injury Attorney Blog

As vaccines become more and more prevalent as a means of preventing illness and disease, we need to take a strong look at potentially devastating side effects from such vaccines.

Take for example the wonder drug known as Gardasil. Pharmaceutical juggernaut Merck has touted Gardasil as a significant step forward in the prevention of cancers, specifically cervical cancer. The majority of cervical cancers are believed to be linked to the Human Papillomavirus (HPV), in which HPV infections are suspected to be the major culprit behind cervical cancers and STDs such as genital warts.

The HPV vaccine is currently being given to girls and women between the ages of 9-26, and now Gardasil has recently become available to be used in boys and men between the ages of 9-26.

However, the data now seems to suggest that some girls who receive Gardasil to guard against cervical cancer may be at greater risk of contract Guillain-Barre Syndrome (GBS) , a rare neurological disorder that affects the peripheral nervous system. Individuals with GBS often experience paralysis that can start in the legs and slowly rise upwards to the upper body and face. In GBS, a person's immune system is essentially trying to destroy part of the person's nervous system.

A flu virus or illness can cause Guillain-Barre Syndrome (GBS) , but a vaccination or surgery can also create the conditions for GBS to occur.

In addition, there is research which now suggests that amyotrophic lateral sclerosis (ALS) or Lou Gehrig's disease may also be linked to Gardasil or the HPV vaccine. Lou Gehrig's disease is fatal and such a vaccine injury represents a wrongful death product liability suit . Researchers have determined that the timing of the ALS symptoms in conjunction with the receipt of the vaccine suggest a link between Gardasil and Lou Gehrig's disease.

Merck has denied any link between Gardasil and GBS , but the data suggests otherwise. The Vaccine Adverse Event Reporting System , a joint effort between the Food and Drug Administration and Centers for Disease Control , indicated an incidence of over 50+ cases of GBS following HPV vaccination in the last 3 years. An overwhelming majority of the cases developed within 6 weeks after vaccination, with about 20 cases or so developing within the first 2 weeks of vaccination. The onset of symptoms within 2-6 weeks after vaccination is a classic timeline for GBS. Although the risk is low, the association between vaccines and GBS has been known to be an after effect since the mid-70s swine flu outbreak.

There are several law firms that are well positioned to handle Gardasil vaccine injury cases. You need attorneys who are specifically licensed in the Federal Court of Claims and handle cases due to vaccine injury. If you or a loved one have suffered a Gardasil vaccine injury and you need a Gardasil HPV Vaccine attorney , contact a law firm immediately.

A Texas product liability lawyer must be very mindful of House Bill (HB) 4, which has preempted the rights of personal injury victims. The purpose of this blog entry is to review some of the major changes associated with HB4 in Texas product liability law.

HB 4 had several major changes. First, it created a presumption of no liability in particular areas. It created a 15 year statute of repose. A statute of repose is similar to a statute of limitations, but usually the deadlines are enforced more strictly . For example, the statute of limitations would be tolled or delayed based on the discovery rule, which states that the clock on bringing a claim does not run until the injury could reasonably have been discovered, A statute of repose would not normally be tolled by the discovery rule. HB4 also created immunity for passive sellers.

The Texas Civil Practice and Remedies Code (CPRC) codifies these changes, including a presumption of no design or marketing defects in certain areas; a presumption of no marketing defects in specific Texas medical device / pharmaceutical drug injury cases; the creation of the 15 year statute of repose; and the establishment of passive seller immunity.

CPRC 82.008 created a presumption of no liability for the formulation, labeling, or design of a product if the manufacturer or sellers follow mandatory federal regulations / safety standards. If the seller or manufacturer demonstrates that he complied with the mandatory standards or regulations, then the Texas product liability lawyer must overcome a presumption that the manufacturer / seller is not liable for any injury caused by some aspect of the formulation, labeling, or design of the product.

The seller /manufacturer must show that the presumption of no liability is applicable. Keep in mind that the presumption is limited to formulation, labeling, or design. If a Texas citizen claims serious personal injury based on a marketing defect other than the labeling, than the presumption of no liability is not applicable. In addition, the mandatory safety standard or regulation must have been in effect at the time of the manufacture and be applicable to the risk that created harm.

To illustrate, Federal Motor Vehicle Safety Standard 207 governs seat back strength. The purpose of this federal law was to protect a passenger from injuries from a seat back failure and certain Texas seat belt injury cases. However, the regulation is not applicable to protect passengers who sustained injuries from a front passenger seat back failure. It is absolutely essential for a Texas personal injury lawyer to engage in a careful analysis of the federal safety standards in order to combat any rebuttable presumptions that may be created by Texas product liability laws.

Do you remember the OJ Simpson criminal and civil trials of the 1990s? In that case, in June 1994, Nicole Simpson and Ronald Goldman were found stabbed to death. Criminal charges were filed shortly thereafter against OJ Simpson for murder. What people fail to remember is that in May 1995, a wrongful death civil lawsuit was filed against OJ Simpson on behalf of the Goldmans. However, the civil suit trial did not commence until after the criminal trial ended in the acquittal of Simpson in October 1995. The civil trial commenced in October 1996 and resulted in a jury finding of liability against Simpson with compensatory damages of $8.5 million.

People often wonder about the disparate results between the civil and criminal cases. The answer lies in the standard of proof. The criminal case required a standard of proof of beyond a reasonable doubt, while the civil case requires the lesser standard of preponderance of evidence , which means a greater than 51% chance that Simpson killed Goldman. So it would be much easier to obtain a finding of liability in the civil matter than in the criminal one.

The law allows a Texas civil action for assault by infliction of bodily injury if the defendant acted intentionally, knowingly, or recklessly; made contact with the plaintiff; and caused bodily injury to the plaintiff. The action of personal injury assault can also be brought against the employer if the assault was committed by the employee within the course and scope of his employment. This type of situation is known as vicarious liability under the doctrine of respondeat superior. A defendant can also be held liable for assault under the theory of participatory liability if the defendant aided and abetted another to commit the assault or participated in a conspiracy to commit the assault.

The type of contact needed to prove assault can be direct or indirect. Indirect contact examples can be a police officer who crashes his patrol car into the plaintiff's car or a defendant who shoots a plaintiff with a gun.

To prove injury, a San Antonio personal injury lawyer must demonstrate the plaintiff suffered some pain, illness, or impairment due to the contact per Texas Penal Code Section 1.07(a)(8). The type of contact must be greater than mere offensive touching.

In a civil action for assault, the plaintiff can recover actual damages including damages for physical pain, mental anguish, medical care, loss of earning capacity, physical impairment, and disfigurement. The plaintiff can also recover exemplary or punitive damages. Plaintiff can also recover prejudgment and postjudgment interest as well as court costs. Generally, attorney fees are not recoverable in an assault action.

There is a 2 year statute of limitations in Texas civil assault claims regardless of whether there is an ongoing criminal investigation / trial. The statute of limitations for sexual assault is 5 years. The clock begins running when the assault occurs. There are various defenses to a claim for assault damages, including consent to the defendant's conduct and self defense provided the use of deadly force is used to defend against unlawful deadly force. The defendant does not have a duty to retreat if he had a right to be at the location, did not provoke the plaintiff, and was not engaged in criminal activity. A defendant can assert the defense of justified force to protect a third party or protect his property.

There are various types of losses a Texas personal injury attorney can recover for an injured claimant. In San Antonio wrongful death cases , for example, medical, funeral, and burial expenses can be recovered in a survival action brought by the executor of the estate. Medical and funeral expenses are also recoverable in wrongful death actions, but recovery is strictly limited to those expenses actually incurred by the beneficiaries.

In an action for wrongful death, the beneficiary can recover medical expenses provided the beneficiary had a legal obligation to pay for those expenses. In addition, an estate can recover punitive damages in a survival action, but parents cannot recover exemplary / punitive damages for a child's death. Any expenses must also be reasonable in order to have recovery.

In a survival or wrongful death action, there is also recovery for pecuniary losses such as the value of the care, support, and services, a plaintiff would have received if the deceased individual had lived. There must be evidence the deceased family member provided such support and services. Expenses for psychological counseling also fall under the realm of pecuniary losses and may be recovered in wrongful death actions.

When an adult child has died, the parents are entitled to pecuniary damages relating to care and maintenance that the parent would have received from the adult child if he had not died. /for example, in the Ledezma case, the jury awarded $215,000 in pecuniary losses to the mother of an adult child who had supported his family since the age of seven.

Under the Texas Wrongful Death Act, the beneficiary may assert damages for loss of inheritance. The loss of inheritance damages are determined by estimating the amount the decedent would have left the beneficiaries if not for the premature death or accident. If for some reason, the deceased injured party would have outlived the beneficiary, then inheritance damages would be denied. There must also be enough evidence in the record to place a dollar figure on the likely estate value at the end of a normal life as well as the present value if the estate in order for such inheritance damages to be awarded.

Wrongful death claimants and survival beneficiaries are also entitled to lost earnings. A loss of earnings capacity damages claim is not limited by the deceased's salary prior to injury. For example, a plaintiff has been found entitled to loss of earnings capacity damages when the deceased was unemployed at the time of injury.

There is a distinction between loss of earnings capacity damages and loss of earnings damages. In contrast to loss of earnings capacity, to obtain loss of earnings damages, the wrongful death plaintiff must demonstrate with reasonable certainty that actual amount of lost past earnings. It must also be shown that the plaintiff who was killed had capacity to work prior to the injury and the injury seriously hurt that capacity. Moreover, any past employment that can illuminate what the plaintiff's future earnings could have been can be introduced. Evidence of the weaknesses and degenerative nature that resulted from personal injury and plaintiff's work-life expectancy are additional factors.

Medical and funeral expenses, pecuniary losses, loss of inheritance, loss of earning capacity, and loss of earnings are some of the economic damages a Texas wrongful death lawyer will pursue for you in a San Antonio serious personal injury accident or malpractice claim.

Most Texas medical malpractice cases require experts to prove causation. There are exceptions where a jury does not need an expert to decide causation. Those medical malpractice cases are limited to those cases where a jury can use its own experience and common sense to determine causation. For example, a jury will not need an expert to establish a causal connection when a doctor inadvertently leaves a wire in a woman's breast.

Another example is an elderly plaintiff who sustained personal injury at a Texas nursing home after he fell while walking down a hall in the office and sustained serious brain injuries . The defendants moved to dismiss the case on the basis that the plaintiff failed to provide expert testimony. However, the Court denied the dismissal indicating that the medical provider's failure to provide an escort or medical device to assist the plaintiff was within the realm of the jury's common sense and general experience. Even the defendants' expert testified that the plaintiff required an escort to prevent falling.

In order for the court to admit expert testimony, the expert must be qualified in the particular area and the admitted facts must support the expert opinion. For example, on Texas negligence claims against a physician or hospital, the expert should be a doctor who can testify on the alleged departure from accepted standards of care. The same logic applies to Texas dental malpractice claims or Texas podiatrist malpractice claims . A nurse is generally not qualified to render an opinion on the medical causation of injury unless that opinion is used in conjunction with another doctor's opinion.

Rule 702 of the Texas Rules of Evidence governs the admission of expert testimony. First the expert must be qualified. Second, his proposed testimony must have scientific or technical foundation. The trial court has the discretion to apply such standards to determine the admission of expert testimony.

In Robinson, a Texas product liability case , the plaintiff sued a pesticide manufacturer for a product that damaged their pecan trees. Initially, despite the plaintiff's expert credentials, the plaintiff's expert was not allowed to testify due to alleged unreliable testimony. The Texas Supreme Court in response adopted the Daubert standard indicating that both relevancy and reliability were needed for admissibility of an expert's testimony. The Court cited such factors as the extent of scientific testing of the expert's theory, the amount of subjective expert interpretation, peer review of the theory, potential rate of error, acceptance of the theory by the scientific community, and non-judicial uses of the theory.

As you can see, a Texas personal injury lawsuit begins and ends with the quality of the expert. The expert's theory must be relevant and reliable. If you can overcome the hurdles involved and get the expert's testimony admitted, a Texas medical malpractice or San Antonio wrongful death attorney can recover what you deserve.

The lost chance of survival doctrine in medical malpractice cases does not exist in Texas. Ultimately, Texas medical malpractice laws state that a plaintiff's ability to recover monetary and punitive damages for personal injury is barred where the medical practitioner's negligence deprived the plaintiff of only a 50% or less chance of survival.

To illustrate, in the Milo matter, the patient underwent a hernia operation. Soon thereafter, he began to complain greatly of pain. It turned out that the surgeon's sutures had rotted, leading to sepsis and shock. Milo was placed on a respirator. A different doctor tried to take Milo off the respirator and after several attempts, Milo went into sudden cardiac and respiratory arrest, causing brain damage and her death 4 months later. The ultimate question before the court was whether Milo would have survived if the other doctor had not tried to take her off the respirator. The plaintiff's expert testified that before the debacle with the respirator, Milo only had a 40% chance of surviving her pre-existing condition with the sutures. Because the negligence dealing with the respirator reduced the plaintiff's already less than even chance of survival, the Texas Supreme Court barred recovery for the respirator negligence as a matter of law.

In Rodriguez, parents of a baby brought a Texas medical malpractice claim for failure to give the mother antibiotics to the mother and infant, resulting in the baby's death. The defendants argued that the plaintiffs failed to provide an expert who testified that an earlier provision of the antibiotic would have saved the infant. The court barred recovery because the experts could not testify that the baby's chance of survival would have been greater than 50% had he been administered the antibiotics.

In Hawley, plaintiff sued a hospital for failure to timely inform her of a colon cancer diagnosis known as "Duke's C" cancer. By the time she learned of the diagnosis a year later, she had developed an inoperable liver tumor. The defendant doctors and hospital argued that there was no evidence to prove that Hawley had a greater than 50% chance of survival with a Duke's C diagnosis. However, Hawley's medical providers indicated that with a Duke's C diagnosis, she had a 60-65% chance for survival as opposed to a Duke's D diagnosis in which she had a 0-30% chance of survival. The jury's verdict in favor of the plaintiff was upheld.

If you have been a victim of misdiagnosis or medical negligence that has caused a Texas wrongful death or personal injury, contact a wrongful death San Antonio and greater Texas lawyer today!

As an update to our last blog post, several important Texas medical malpractice cases
have emerged that can affect residents of San Antonio and greater Texas.

In Dallas, a patient suffered severe and permanent brain damage in Texas when Baylor medical center's emergency care center did not allegedly detect a cerebral hemorrhage in the patient. The patient's medical expert discussed the standards of emergency care specifically with respect to a physician assistant (PA) and his report met the statutory elements of causation.

In another case involving a birth injury, a mother sued on behalf of her son when he suffered severe impairment and disfigurement at birth. The personal injury lawsuit alleged that the doctor failed to perform a caesarian section. However, statutorily, the mother failed to serve the offending doctor within the 120 day period. This is a major lesson in San Antonio medical malpractice cases - you must serve your expert report of medical malpractice and negligence within the 120 day period.

In another medical negligence case arising in Corpus Christi, a woman's legs were burned and scarred when a nurse allegedly committed medical negligence with a laser. The patient also sued the doctor, claiming vicarious liability for the nurse's negligence. The court did not consider the suit a health care liability claim per se, although it did classify the laser as a regulated medical device, which can represent a form of San Antonio product liability negligence .

Finally, in another Dallas claim, the Court ruled that claims against a plastic surgeon and the plastic surgery company after a negligent face lift procedure was considered to be a health care liability claim and not a claim under the Texas Deceptive Trade Practices Act (DTPA)
. The plaintiff had to satisfy the expert report requirement for medical malpractice claims. Causation and damages were an essential part of the claims and the finding of negligence against the plastic surgery company was dependent on a medical malpractice finding as to the surgeon.

If you have been a victim of medical malpractice or suffered injury from a medical device or pharmaceutical drug, contact a San Antonio and greater Texas personal injury attorney immediately.

In 2009, there were several major San Antonio and greater Texas pharmaceutical drug injury cases.

In Houston, an injured woman brought suit against Wyeth Pharmaceuticals claiming several prescription drugs used for her hormone replacement therapy had caused her serious personal injury. Her causes of action included failure to warn and design defects in the drug. The Appellate Division indicated that federal laws did not preempt the failure to warn claim, even if the FDA had approved the label's warnings. However, the cause of action claim for a design defect was dismissed on account the plaintiff had not proven a safer alternative.

In a Texas personal injury auto accident case in Houston, the injured driver sued the manufacturer of a truck for negligence and product liability claims. In these types of cases, the burden is on the plaintiff to show evidence of a safer alternative design. It is also critical that the injured plaintiff's expert have the training, experience, and special knowledge to comment on design defect and the use of safer alternative designs.

In another Houston Texas pharmaceutical drug injury case, a woman sued her doctor and Wyeth Laboratories for injuries from the dietary drugs Pondimin and Reduc. She alleged personal injuries including heart damage. However, the case was dismissed. San Antonio and greater Texas products liability cases must be brought within 2 years after the person suffers the injury.

In 2009, there were several seminal cases in the area of Texas medical malpractice and Texas nursing home abuse litigation .

In Dallas, the patient brought an action against both the physician and the physician's assistant (PA) for their failure to follow up on a mass detected on a mammogram. It is important to note that the expert report on behalf of the plaintiff has to address the specific standard of care for both the doctor and the PA.

In a Texas dental malpractice case out of Corpus Christi, the dentist allowed her assistant to remove the crown and grind the plaintiff's teeth. The dentist was alleged to have committed malpractice by giving work to a non-dentist and keeping unsuitable dental records.

In a Houston Texas Gynecology malpractice case, a woman experienced grave difficulties during childbirth and suffered serious personal injuries during childbirth. Under Texas law, the employer of the obstetrician has 21 days to object to the plaintiff’s expert report. By failing to object within the statutory timeframe, the employer waived his right to object to the report. Also, the injured mother's claims against the obstetrician's employer under respondeat superior and Texas Professional Association Act did not require a separate report to discuss negligence of the employer.

In a Texas nursing home abuse case , the plaintiff sued on behalf of a family member who allegedly had been abandoned during Hurricane Rita leading to her death from dehydration and malnutrition. The Court ruled that such claims were considered Texas health care liability claims and required an expert report.

If you or a family member has been the victim of nursing home negligence a breach in the standard of care by a medical professional, you owe it to yourself to contact a San Antonio and greater Texas nursing home and medical injury lawyer today.

Since January 1, 2009, there have been several important developments affecting motor vehicle accident personal injury litigation in San Antonio and greater Texas .

Specifically, the Texas legislature updated the minimum limits for auto insurance to $25,000 for injuries per person for policies written after April 1, 2008 and $50,000 per accident if more than 1 person is injured. There is a $25,000 minimum coverage for property damage for policies written after April 1, 2008 with allowances of a $250 deductible per person injured or for property damage and $500 per accident. See Tex. Transportation Code § 601.072.

In a recent San Antonio accident San Antonio car accident involving a dump truck and eighteen-wheeler (18 wheeler), the Court of Appeals upheld a jury verdict against the dump truck driver and his employee. The court ruled that had the employer followed the law and contacted the driver’s former employee, he would have discovered the driver’s multiple speeding citations and positive drug test for cocaine. Moreover, the court upheld the award of $400,000 for pain and suffering, because it appeared the driver was at least conscious while his vehicle spun out of control and was aware he would soon die.

In another auto accident case, drivers brought suit against the Texas Department of Transportation for deaths and injuries caused by loose gravel on the road. The Texas Supreme Court ruled that loose gravel was not a special defect under the Texas Tort Claims act, and the TxDOT did not owe a invitee standard of care to drivers.

If you have been in an auto accident, do not delay. Contact a San Antonio injury auto accident lawyer today.

There have been several important cases regarding the Texas Tort Claims Act in 2009. As you may recall, the Texas Tort Claims Act governs the liability of governmental entities. Under Section 101.021 of the Civil, Practice and Remedies Code, the Texas Tort Claims act lays out the conditions under which a person may sue governmental entities with caps of $250,000 - $500,000 for bodily injury or death. A San Antonio personal injury attorney can guide you through the intricacies of pursuing a governmental entity for negligence.

According to the Act, the personal injury must have been caused by a condition or use of tangible personal or real property.

In one case, a family of a Dallas inmate who committed suicide with a corded telephone on his cell sued the county for negligence. The Texas Supreme Court ruled that governmental immunity was not waived because the inmate’s use of the telephone cord did not constitute a condition or use of tangible personal property within the definition of the Texas Tort Claims Act.

In Travis County, a bicyclist sued UT Austin when his bicycle collided with a metal chain, which threw him off the bicycle and caused personal injuries. The Appellate Court held that the chain could cause an unreasonable risk of harm , and the university had a duty to warn of dangerous conditions caused by the chain. For bicycle and motorcycle injuries in San Antonio , consult with a vehicular accident injury in Texas.

In another case in Brazoria County, the Court held that a laborer who was injured when the floor in the jail collapsed failed to give proper notice to the county of his negligence and premises liability claims as required under the Texas Tort Claims Act. This case is a grave reminder that if you have been injured and wish to sue a governmental entity, you must give the proper notice in order to file suit. Consult with a San Antonio personal injury attorney on the Texas Tort Claims Act today.

In San Antonio and greater Texas, there have been several key personal injury cases in the area of premises liability in 2009.

In one case, a guest at a condominium severed his finger while sitting in a pool-side chair. The court held there was no evidence that the condo association had actual or constructive knowledge of the broken weld in the chair. A San Antonio personal injury attorney can aggressively pursue evidence of constructive or actual knowledge in premises liability cases.

In a case against the City of San Antonio alleging benzene exposure from a nearby closed municipal landfill, the Texas Supreme Court found there was no expert evidence as to the level of benzene in the plaintiff’s daughter. There were also questions concerning the association between the mother’s exposure to benzene and the daughter’s leukemia in utero. Oftentimes, benzene lawsuits in Texas hinge on the quality and strength of expert opinions on causation.

In another case, a contractor sued for personal injuries against the San Antonio property owner
when he fell through the roof while trying to repair an air conditioning unit. The court denied the property owner’s motion for summary judgment, because the plaintiff’s claim arose from the condition of the roof, not the air conditioner.

In another case out of Corpus Christi, the estate and family of a deceased inmate brought a Texas wrongful death action against a private correctional facility after the inmate was murdered by two inmates. Allegedly, the prison guards did nothing to stop the attack and the prison wardens laughed. $47.5 million was awarded in actual and punitive damages. The court held there was sufficient evidence to show negligence, and it supported the trial court’s spoliation instruction concerning the destruction of the prison’s surveillance tapes.

Although Texas reforms have put the breaks on a lot of Texas medical malpractice claims , there are still several great examples of medical negligence cases which can be brought by a Texas medical malpractice lawyer.

In one case, a patient fell from a hospital bed and alleged several acts of negligence. After initially being dismissed for failure to file a timely medical report, the Texas Supreme Court reversed and held that the claim that the claim the bed had been negligently installed was not considered a health care liability claim. Nursing home negligence cases require extensive and aggressive litigation.

In another case, plaintiff’s daughter was sexually assaulted by a nurse’s aide, and the plaintiff sued two nursing homes for failure to file misconduct reports as required under the law. The plaintiff claimed the two (2) year statute of limitations for reporting medical malpractice was tolled on account of the daughter’s mental incapacity. The Appellate Court held that the failure to report misconduct was a health care liability claim and the tolling of the statute of limitations was inapplicable.

As you can see by these two cases, there are two (2) critical aspects to a medical malpractice case in Texas : the two year statute of limitations and the necessity of an expert report within 120 days of filing suit.

In a case involving Baylor Medical Center, plaintiff alleged medical malpractice when the emergency doctors failed to discover a cerebral hemorrhage which led to permanent brain damage. The Court accepted the report filed by the plaintiff’s expert as to causation and indicated the report did not have to eliminate every possible cause of injury. In another case involving Baylor College of Medicine, plaintiff sustained injuries during a knee surgery and sued for medical malpractice. The court accepted the expert report of the orthopedic surgeon as to causation.

Medical malpractice cases are harder than ever but you will never know unless you consult with a San Antonio and greater Texas medical malpractice attorney
as soon as possible.

There have been several San Antonio nursing home personal injuries which merit comment.

The executrix of the estate of a San Antonio nursing home resident sued 2 doctors and the nursing home for medical malpractice. The alleged victim was a 72 year old woman who developed a staph infection and sepsis after her back surgery. The appellate division dismissed the case on the basis of an inadequate expert report. The Court specifically cited failure to link the nursing home's failure to tell the physicians of drainage issues with the woman's subsequent death from sepsis.

In a Texas pharmaceutical drug injury and medical malpractice case, a woman sued Eli Lilly claiming that the company's drug warnings were so defective as to contribute to his suicide. Texas law is instructive on this point. The plaintiff has to prove that the doctor would have changed their decision to prescribe a particular drug if the doctor was aware of an alternative drug warning. It is the pharmaceutical company's duty to warn the doctors (known as learned intermediaries) as opposed to direct warnings to the consumers. Ultimately, doctors are aware of the risks of the drug and can make the consumer patient aware of those risks. The 5th Circuit did indicate that the read and heed presumption (i.e. the patient will follow a warning if one is given) was not applicable to failure to warn product liability cases against pharmaceutical companies involving a learned intermediary. Ultimately, the plaintiff failed to prove causation because he did not adequately show the doctor would have changed his mind given an alternative warning.

In a Fort Worth Texas medical malpractice case a family sued an EMT doctor when the biopsy by the physician allegedly struck the husband's skull and affected his central nervous system. The court held that the suit against the hospital for the physician's malpractice did not survive because there was no evidence of an employment relationship , agency relationship or actual control over the EMT doctor by the hospital.

Finally, a midwife and her religious organization were sued for complications arising out of childbirth. The Court deemed a midwife a Texas health care provider and the plaintiff could assert a Texas health care liability claim.

Texas nursing home abuse is inexcusable and despicable. The elderly have rights but because there is no voice to defend them, nursing homes and their corporate structures believe they can take advantage. If you or a loved on have suffered nursing home personal injury in San Antonio and greater Texas , contact a San Antonio personal injury lawyer today.

In proving malpractice, a San Antonio Texas personal injury lawyer must be extremely careful in choosing his expert witnesses. Many a Texas pharmaceutical injury case or malpractice case has been dismissed for inadequate expert witnesses.

One potential downfall is that a defendant physician must have his principles tested according to the basic teachings of the school to which he belongs. For example, an osteopathic surgeon is generally judged on principles from the osteopathic school of medicine. The rule is known as the Bowles Rule and it states that a Texas medical malpractice plaintiff must generally provide an expert against the defendant doctor from the same school of practice.

There are exceptions to the Bowles Rule. For example, in Porter, a plaintiff suffered a serious spinal injury in Texas after a doctor negligently administered a spinal anesthetic. The defendant physician was from the osteopathic school of medicine. The plaintiff's expert was from a medical, not osteopathic school. On appeal, the Texas Supreme Court cited exceptions to the Bowles rule where the particular field of medicine is equally developed in all fields of practice and where the use of particular medical devices are common in all fields of practice. In Porter, the Court concluded that both the medical and osteopathic practices utilized the same way of administering the anesthetic and medical experts could testify against osteopathic physicians.

In Borders, the Court excluded the testimony of plaintiff’s emergency physician expert testimony on ER treatment of a head injury which led to respiratory arrest. In the Texas wrongful death suit, the Court indicated that the ER expert was not competent to offer opinions that would counter the neurosurgeon experts for the defense.

In another case, parents sued on behalf of their child who contracted AIDS from a tainted blood transfusion. The parents sued for failure to screen the blood. Although plaintiff's expert held a degree in various disciplines including public health, he was not a trained doctor and did not consider himself an expert in blood banking or hematology. The plaintiff's expert simply could not testify as to the standard of care in the blood bank industry.

A plaintiff's expert must have the knowledge, skill, experience, training, or education to give an expert opinion not only on the duty and standard of care, but also as to specific causation. Otherwise, many San Antonio and greater Texas personal injury cases run the risk of dismissal with prejudice.

In the late 1990s, the Texas Supreme Court indicated that the substance of an expert's testimony must be considered, specifically the data the expert relies on to form his/her opinion. If the foundational data upon which the expert bases his opinion is unreliable, then the expert's opinion will be considered unreliable.

Very often, in Texas pharmaceutical injuries or Texas wrongful death cases from exposures to lethal substances, the Court looks at epidemiological studies of the substance's effect on a population. The study must demonstrate that the risk of disease or injury for the population of people exposed to the substance is twice the risk of the population contracting the same disease who have not been exposed to the substance.

To illustrate, if a disease naturally occurs in 6 out of 1000 people when they are not exposed to a certain drug or substance, then a study would have to show that more than 12 out of 1000 exposed to the drug or substance would suffer the disease. Another option is that the epidemiological study must show significant results at a 95% confidence level.

The Supreme Court detailed additional criteria known as the Bradford-Hill criteria before the court can draw any conclusion about causation on the basis of studies. On top of that, the plaintiff must demonstrate he or she is similar to the study members, including proof of exposure to the same substance, a dose level similar to the persons injured in the study, that the exposure occurred before the injury onset, and that the timing of the onset of injury is similar to the study members. The classic example is epidemiological studies for Texas benzene exposure cases and leukemia onset, which can be as long as 30 years after the exposure. The type of injury suffered by the plaintiff must obviously be the same as the study that shows the statistically significant risk.

One classic recent case occurred with the San Antonio Vioxx injury lawsuit against Merck. Upon being given Vioxx, the plaintiff suffered and died from a heart attack. The plaintiffs filed a Texas product liability claim against Merck, claiming design defect and marketing defects in Vioxx which caused a wrongful death. Merck moved to dismiss, arguing that the plaintiffs failed to introduce into evidence at least 2 statistically significant studies showing that the risk of a heart attack was twice as great with a person taking Vioxx. The plaintiff's experts demonstrated that before Vioxx, the plaintiff had a stable cardiac status. After taking Vioxx, the plaintiff developed two fresh clots in 2 different arteries, a type of problem caused by Vioxx.

The bottom line is that in San Antonio personal injury cases , it is critical the expert has the qualifications and credentials to give testimony to overcome a motion for dismissal. Moreover, the expert's knowledge, skill, experience, training, and education must be in line with the specific case and causation questions.

Many plaintiffs now ask what can be recovered in a Texas wrongful death medical malpractice case . Under Texas Civil Practice and Remedies Code (TX CPRC ) Section 74.301, there is a cap of $250,000 on "non-economic" damages.

Non-economic damages compensate an injured plaintiff for physical pain and suffering, mental or emotional pain, loss of consortium (the services of a spouse), disfigurement, physical impairment, and other types of non-monetary losses.

Exemplary damages, also known as punitive damages, are those damages which are often assessed against defendants for reckless or malicious behavior. Juries award these types of damages for the defendants' behavior. Exemplary damages are not included in the cap for non-economic damages.

The limit of civil liability for non-economic damages for a physician or health care provider is $250,000. The civil liability of healthcare institutions such as hospitals is $250,000 for non-economic damages. Registered nurses fall under the realm of healthcare providers and would be subject to a $250,000 cap.

Even if there are multiple number of plaintiffs suing under the death of the single individual, the plaintiffs count only as on claimant for purposes of the cap. With multiple health care institutions, the most a medical malpractice plaintiff can recover in non-economic damages from personal injury is $750,000.

In Texas wrongful death cases , the limit for civil liability on a health care liability claim is $500,000 including exemplary damages. The cap does not include medical or hospital expenses incurred in the treatment of the injury. The cap applies regardless of the number of plaintiffs. In addition, the liability of any insurer for a healthcare defendant is limited to the cap, circumventing the Stowers doctrine which deals with insurer liability.

Those plaintiffs who are not seeking recovery for a wrongful death health care liability claim can expect to recover economic damages.

A Texas wrongful death attorney must know how to navigate costs to maximize recovery to a plaintiff given caps on non-economic and exemplary damages.

There are certain non-economic damage elements that a San Antonio Texas personal injury lawyer can obtain for you in varied cases including wrongful death, medical malpractice, and Texas trucking accidents.

For seriously injured Texas citizens, they may be able to recover damages for pain and suffering in San Antonio Texas auto accident lawsuits . In a wrongful death action, the surviving spouse, children, and parents of the deceased can recover mental anguish damages. Mental anguish damages are those damages that include a mental feeling of pain, such as those that emanate from grief, disappointment, shame, despair, and public humiliation.

In order to recover for mental anguish, a San Antonio personal injury lawyer must demonstrate that the plaintiff suffered a high degree of mental pain and distress that goes above normal worry, anxiety or embarrassment. Texas personal injury law does not require a showing of physical injury to recover mental anguish damages. There is no way to objectively measure mental anguish damages, and the jury has a great deal of discretion in the process. The plaintiff needs to prove to the jury the nature of the mental anguish, its duration, and its severity. The plaintiff must demonstrate a significant disruption in his daily routine as a result.

Future mental anguish damages may be recovered upon a showing that there is reasonable probability there will be future mental anguish. Those plaintiffs with pre-existing emotional conditions can still recover mental anguish damages, although the defendant may argue that the mental anguish suffered by the plaintiff is due to pre-existing conditions.

Whether your family has suffered a Texas wrongful death or serious personal injury, it is incumbent on you to reach out to a San Antonio and greater Texas personal injury attorney as soon as possible.

Texas Civil Practice and Remedies Code (CPRC) 82.008 creates a rebuttable presumption of no liability in certain Texas product liability personal injury cases. However, section 82.008(d) makes exceptions for certain manufacturing flaws o defects from the rebuttable presumption.

If the seller has properly demonstrated the presumption, then it is up to the Texas personal injury lawyer to demonstrate that the standard / regulation was not strong enough to safeguard the public from unreasonable risk of injury or damage. The other option is to prove that the manufacturer, either before or after he commenced marketing the product, kept information or misrepresented information to the federal government. Such withholding or misrepresentation of information would have altered the federal government's creation of a proper safety standard.

In almost every Texas products liability case, the defense attorney premises his defense on his client's compliance with government standards. Counsel will claim that ultimately the government gave the seller a de facto seal of approval. In response, the Texas personal injury lawyer will counter that the federal government’s standard has always been a minimum floor and is often outdated and incapable of creating safety.

Another tactic is to attack how the manufacturer communicated with the government about the adequacy of a safety regulation. Such a tactic will open up a tremendous amount of discovery about not only the product itself, but exactly what the manufacturer told the government about how to construct its standard. It is a somewhat confusing wording on the legislation, because it almost puts the manufacturer in a type of watchdog role on the government’s standards.

Under the bill, there is no exception to the presumption of no liability if the manufacturer misleads or omits key information about its products under the applicable regulations. This key provision allows plaintiff's counsel to obtain all communication between the manufacturer and government as to all information the manufacturer gave the government as well as any communication related to the government's regulation in general. You may recall that during the Vioxx litigation, there were allegations that Merck withheld key research data from the government that reflected an increased incident of serious cardiac injury.

CPRC 82.008(c) also creates a presumption of no liability if the formulation, labeling, and design of the products had to acquire a pre-market licensing or approval from the federal government. Provided the federal government gave pre-market licensing / approval of the product's design, risks, and benefits, then there would be a presumption of no liability.

A Texas serious personal injury attorney would attack this presumption by demonstrating that the standards of pre-market licensing could not have protected society from unreasonable risk of serious personal injury. Another option is to show the manufacturer withheld information from the government that was material to the product's performance and caused the plaintiff's injury. Withholding information must be relevant to the product's performance and causally related so that you may be successful in a Texas product liability lawsuit.

In a Texas pharmaceutical injury or medical device lawsuit, where the lawsuit centers on a failure to warn, TX Civil Practice and Remedies Code (CPRC) creates a presumption of no liability if the warnings associated with the product were not approved by the Food and Drug Administration (FDA) .

There are several ways a Texas medical device injury lawyer can overcome the presumption of no liability, First, he can show that the manufacturer deceived the FDA by omitting or distorting required information needed for pre-market government endorsement and licensing. Any deception in the withholding or distortion of information must be material to the Texas serious personal injury claim and the element of causation is present.

Another way to overcome the presumption of no liability is to demonstrate continued sale of the drug or medical device after the FDA mandated market removal or no longer endorsed the product.

Another way to overcome the presumption of no liability is to demonstrate "off label" use. An off label use occurs when doctors and drug companies begin using a pharmaceutical to treat a problem for which it did not originally receive government approval. If in fact, there was off label use, the presumption of no liability disappears. There are elements of proof associated with off label use. The injured plaintiff must prove that the healthcare provider and / or drug company promoted, advertised, or prescribed the off label use; the injured party used the product as it had been recommended, promoted, advertised, or prescribed; and there was a causal connection between the injury and the recommendations, promotion, advertisement, or prescription of the product.

Another way to overcome the presumption of no liability given compliance with the FDA requirements is that the defendant, either before or after pre-market government approval / licensing, bribed a public official in violation of 18 U.S.C. Section 201 and such conduct precipitated FDA warnings of the product to be substandard.

There has been some controversy over whether a State District Court judge can determine if material information was withheld from the FDA so that plaintiffs can overcome the presumption of no liability. One district court judge granted summary judgment in a Texas Vioxx case on the basis that the FDA is the only entity that can make a determination about whether a manufacturer was deceptive in the warnings information it provided. There have been several follow up cases which have criticized the decision.

In our last blog entry on Texas police chase personal injury accidents , we focused on some of the factors that would point to a finding of negligence on the part of police officers who did not abandon the chase of a suspect in consideration of public safety.

There have been several cases throughout the country that have given some clues as to how the courts interpret police behavior, especially when it is the suspect and not the police themselves who directly causes a collision. In a case in Sacramento CA, the court found that there was some evidence to suggest that the officers had created a dangerous situation in their pursuit of the suspect. For example, the police failed to turn their red lights on and the injured plaintiff indicated that he never heard any police sirens despite the fact that he had his windows rolled down and the radio was off.

In an action against the city of Pasadena CA, the court ruled that under the circumstances, there was enough evidence to bring a cause of action for wrongful death against the city. In that case, the officers pursued a suspect solely for a traffic infraction on city streets in excess of 100 miles per hour.

In another case against the city in Compton CA, officers stopped a motorist without identifying themselves as law enforcement and began brandishing guns, causing the motorist to flee in panic and collide with the plaintiff's vehicle.

In a Connecticut case, contrary to their pursuit policy, the police chased a suspect at high speeds the wrong way down a one-way street causing the pursued vehicle to strike the plaintiff's vehicle.

In some cases, the question becomes whether the driver of the pursued car was driving in a reckless manner and endangering the public before the police began to chase him. In such a situation, the failure of the police to engage in a chase would have presented a substantial threat to public safety. The other question is whether the pursuit in itself was exceptionally hazardous under the circumstances. A chase in a rural area with no businesses or residences where the police are traveling only 5-15 miles per hour over the speed limit would not fit under the category of exceptionally hazardous. In a case against the City of New Orleans, the court ruled that driving over the speed limit in the pursuit of a suspect was not considered negligence per se (i.e. automatically negligence).

However, in a case against the city of West MS, the court ruled that officers chasing a suspect through residential neighborhoods at speeds in excess of 80 to 100 miles per hour and where a plaintiff's residence was damaged by the suspect's out of control vehicle was enough to state a cause of action against the city.

In an upstate NY case, the key question for the court was whether officers acted in reckless disregard for the safety of others. Some key questions are how far police officers were from the fleeing suspects; the conditions of traffic (heavy or light); whether police tried to overtake the suspect's vehicle or force it from the roadway; and how close the police were from the collision and the speed of the officers at the time.

Another key question is whether the city / municipality had properly trained its police force as to high-speed police pursuit and the alternative use of warrant arrest procedure.

If you or a family member have suffered serious personal injury or Texas wrongful death from a San Antonio police chase , immediately contact a San Antonio personal injury lawyer .

Imagine you are driving on a nice sunny day in the heart of Texas, and your vehicle is suddenly impacted from the side by another vehicle moving at an extremely high rate of speed. After the initial shock wears off and you initially deal with the inevitable injuries of such a terrible accident, you come to find out that the police were chasing the person who collided with your vehicle.

The ultimate question in such a situation is as follows: Is the police officer or the Texas county municipality responsible for his conduct liable for a Texas wrongful death or personal injury caused by a vehicle being pursued by the police ?

The answer is … it depends. For example, in Draper vs. Los Angeles, the court ruled that while the police pursuit may have contributed to the reckless driving of a fleeing individual, the officers did not have a duty to allow him to escape. In addition, the court ruled that there was no requirement on the part of officers to warn other drivers to keep out of the way, and there was no evidence that the police were trying to force the fleeing individual to the curb.

In Pagels vs. San Francisco, the court ruled that the police had a duty to operate their vehicles with due care, and it made no difference whether the pursuit was close or near at the time of the collision with the other vehicle.

In contrast, in Myers vs. Town of Harrison, the widow of a taxi driver who was killed by a fleeing driver chased by the police, filed suit on behalf of her husband's estate. The pursued vehicle driver had been in a minor accident just prior to the chase. The court ruled that evidence of wet weather and road conditions over the course of the route of pursuit and the incredibly high speeds involved backed up the claim that that the police acted negligently. It did not matter that the police later determined after the accident that the vehicle had been stolen.

There are certain elements that go into a determination of whether a police pursuit is negligent where the fleeing driver's reckless driving causes a San Antonio auto or truck accident .

- How long was the length of the high-speed chase?
- What were the road conditions?
- What was the time of day of pursuit?
- Was the driver of the pursued car driving in a reckless manner and endangering the public before the police began to chase him, creating a situation where the police had to act to protect the public safety?
- What was the proximity of the nearest police vehicle in pursuit just prior to the collision?
- What were the speeds of the vehicles involved in the pursuit?
- Was the police officer negligent in his conduct of the stop and pursuit? (Example: the officer allows the suspect to leave the car ajar and engine running at the time of the stop and left him unrestrained, allowing him to escape.)
- Did the police flash and sound their sirens during the course of the pursuit so as to alert innocent drivers / pedestrians?
- Did the police violate their own department's pursuit policy?

The ultimate question in which these factors play a role in answering is whether the police should have abandoned the chase out of consideration of safety to the public.

In our next blog, we will discuss some additional cases in which the police and the governing municipality were in fact found negligent for an accident caused by a fleeing driver during a police chase.

A negligent police chase in San Antonio and greater Texas can occur whether the police impacted your vehicle or acted negligently so as to indirectly cause another driver to injure you. Whether you have been affected in a personal injury car accident or a San Antonio wrongful death trucking accident, contact a San Antonio personal injury lawyer without delay.

A growing number of vaccinations including the influenza vaccine and now the newly minted Gardasil vaccine against the cervical cancer Human Papilloma Virus are increasingly suspected of causing the Guillain-Barre Syndrome (GBS).

GBS is a disorder of the neurological system characterized by uncontrollable muscle twitching, fatigue, and symptoms reminiscent of a recent stroke. Recovery does occur but in some case people may continue to have strong debilitating effects over a lifetime. Pulmonary complications and debilitating fatigue are the most common residual after effects.

Gardasil specifically is creating a special set of side effects that mirror the symptoms of GBS, including numbness and tingling, hair loss, extreme fatigue and weakness, and encephalopathy (seizures). Over 16 million does of Gardasil have been distributed to combat cervical cancer, but there continue to be questions about the side effects.

A vaccine injury lawyer can obtain a damage reward to cover important areas including medical expenses, income loss, long and short term care, permanent disability, and the loss of occupation. In addition, in the event of a loss of a loved one, vaccine product liability lawsuit and / or medical malpractice suits may be in order.

One suggestion to develop a model of those individuals who are most likely to develop GBS following vaccination in order to take the necessary precautions against vaccinating such individuals and lower the incidence of vaccine injury. The fact that Gardasil has been expanded to cover males teens only underscores the need to practice better preventive medicine.

Because the Vaccine Adverse Event Reporting System (VAERS) is a voluntary system, there is a greater possibility that the incidence of GBS following vaccinations such as Gardasil is being grossly underreported and there may be a greater incidence of side effects and vaccine injury.

A Gardasil lawyer can work with you in filing a suit for vaccine compensation and if necessary a Gardasil lawsuit against the pharmaceutical companies such as Merck.

As a growing number of Texans buy guns from gun shops and flea markets, Texas and the nation as a whole are seeing a rise in gun accident injuries . Product liability design defects contribute to a large number of deaths and tragic injuries each year.

Many people are unaware that gun manufacturers often cut corners by failing to provide safeguards against design defects and / or failing to adhere to quality control procedures. For example, the trigger mechanisms on the gun are often placed on the tip of a part known as a sear. It only takes a slight tolerance change during manufacturing to create a gun that will discharge from a slight jar without any trigger movement. Often, Texans report the weapon continues to fire until all ammunition has been discharged from the gun.

Another defect is demonstrated when someone drops the gun on its hammer (the hammer is cocked before firing). The drop of the weapon on its hammer will cause an uncocked hammer to move forward and cause the firing pin to strike the bullet casing , again causing a discharge of the weapon without a trigger pull.

Gun manufacturers are well aware of safeguards such as manufacturing the weapons with close tolerances and using a hammer block to prevent a gun firing without a trigger pull.

A recent phenomenon has been the use of SKS rifles which are now sold in the states. The SKS rifles were made in China for the benefit of the Russian and Chinese armies. The Chinese government recovered such weapons, and in doing so, it often switched out parts that had worn down or were not functioning. These altered weapons made their way into the United States and were sold as new weapons. Unfortunately, because the parts of the SKS rifles were built to certain specifications and were not interchangeable in tolerances, such SKS rifles are extremely prone to fire when jarred with no trigger pull. When jarred, these SKS rifles will discharge like a machine gun until all the bullets have been exhausted.

If you have been the victim of a gun accident, there is a strong possibility the discharge was a result of a design defect and you should contact a San Antonio and greater Texas product liability lawyer immediately.

It is a parent's worst nightmare. You hear that your child entered the area of a swimming pool and sustained a serious injury like quadriplegia. As the weather heats up, swimming pool injuries and accidents rise in San Antonio and greater Texas.

Many Texas residents do not know that swimming pool injuries often occur due to the negligence of the swimming pool owner. For example, perhaps the owner fails to properly mark the depth of the pool. In some cases, the owner may have failed to install a gate to keep small children out of the area of the pool. What about temporary swimming pools which often lead to injury as well ? We often hear about people diving into pools where the water depth has not been properly labeled or where water depth is incorrectly tagged (i.e. the water depth is shallower than marked).

In addition, owners have to be wary of structures from where a person can dive into a swimming pool from a height that can cause paralysis or death. Negligence actions by an experienced San Antonio and greater Texas personal injury lawyer can help you achieve justice when a home owner does not safeguard their swimming pool.

As a Texas resident, you may have been the victim of what you considered false, misleading, and deceptive business and insurance practices. Perhaps a Texas company you were doing business with breached its warranty or committed an outrageous business practice.

What can you do? Luckily, Texas has enacted the Deceptive Trade Practices - Consumer Protection Act ("DTPA") which outlaws certain practices that deceive customers. If you believe you are the victim of a deceptive trade practice, it would behoove you to consult immediately with a San Antonio and greater Texas consumer fraud attorney .

The DTPA allows for both public enforcement and private civil resolution. The Texas Attorney General can seek a court order preventing the particularly deceptive practices, while you as an individual have a right to have your grievances addressed in a court of law.

What types of consumer transactions does the DTPA apply to ? The answer is a very broad spectrum of goods and services. "Goods" include tangible things or property that are purchased or leased for use would be covered, while "Services" include any type of work that your purchase or lease. The DTPA however does not apply to professional services involving advice such as for example a lawyer. (Darn!)

The DTPA often used the magic word "unconscionable" to describe particular actions. "Unconscionable" means an action that serves to take advantage of a consumer's lack of knowledge to a grossly unfair degree. Here are some typical actions that would be covered under the DTPA: a) an unnecessary $100 car repair; b) a homeowner buying a home in San Antonio or greater Texas ; c) a business buying a million dollar corporation; and d) buying a LEMON car. The DTPA can be used from the consumer sale to a large business transaction.

Consumer fraud is a form of economic personal injury and you should consult with a a San Antonio and greater Texas consumer fraud lawyer immediately if you believe you have been the victim of fraud. Chances are you are not alone!

The state of Texas has become notorious for a lack of construction safety. Recently, the Department of Labor announced increased enforcement of construction safety regulations in San Antonio Texas. An unacceptable 67 workers have died on the job in 2008, and another 33 died to date in 2009.

There are many types of Texas industrial accidents that occur needlessly, and they occur as a result of employer negligence and failure to implement safety measures. For example, cranes often tip over causing injuries. Crane injuries are often due to inadequate warnings about the load capacity of the crane and the altitude those loads can be lifted. Cranes possess devices that warn if a dangerous load could potentially cause a crane to tip over.

Forklift injuries in greater San Antonio are also common especially for the operators of stand up forklifts. The operator backs the forklift and is injured by materials that penetrate the position where the operator is standing or the operator's foot or leg is just outside the platform and the leg or foot is seriously crushed. Forklift manufacturers are easily able to install "falling object protection" devices that prevent forklift injuries.

There are numerous types of industrial equipment accidents that result in injuries or death which could be prevented through redesign and safeguards. A San Antonio and greater Texas personal injury attorney can determine such alternative designs and safeguard simply by reviewing the patents on the equipment.

In the last ten years, SUV rollovers have become a major problem in San Antonio and greater Texas. There are several factors that contribute to this tragic phenomenon in the states. For example, many manufacturers produce SUVs with an excessively high center of gravity. Sometimes, SUVs possess weak suspension systems or shock absorbers that are not located far enough outboard. The bottom line is that it is absolutely unacceptable when an SUV or any type of vehicle for that matter can roll over on a flat surface - manufacturing defects are absolutely present.

Imagine you or a loved one is properly seat belted and your vehicle rolls over. Now you are facing complete disability as a quadriplegic. A Texas personal injury serving Texas and San Antonio is needed to effectively prosecute these types of manufacturing defects.

One of the most glaring defects is a defectively designed roof. A roof is considered excessively crushed when the crush measures more than 4 inches. The most amazing thing is that these roofs actually meet Federal Motor Vehicle Safety Standards, which represent the baseline. However, the fact that these roofs meet the federal standards does not pre-empt a suit for personal injury damages.

The history of standards on vehicle roof crush standards is very ironic. When the roof crush is designed in such a way that it does not exceed four (4) inches, a seat belted individual (or even a non-seat belted individual) would not likely suffer rollover injury even when the vehicle exceeds ninety (90) miles per hour.

In fact, the now bankrupt General Motors (GM) at one time possessed the goal of manufacturing vehicles that would not roll over up to 65 mph. Yet the Federal Motor Vehicle Safety Standards were modified so that the Federal standard on the crush limit for roofs was greater than 4 inches. Thus, auto manufacturers like GM had little incentive to build SUVs with roofs that did not exceed roof crush limit of 4 inches.

With the rise in gas prices, the decrease in SUV sales, and the increasing emphasis on safety, one hopes the National Highway Traffic Safety Administration will lower the roof crush limit to a safe level. Recently the United States Department of Transportation (USDOT) has imposed much stricter roof standards, doubling the requirement for light vehicles weighing up to 6,000 pounds. Now, the roof protecting both the driver and passenger sides must be able to withstand a force equal to 3x the weight of the vehicle. For vehicles between 6,000 to 10,000 pounds, the roof has to be able to withstand a force equal to 1.5x the weight of the vehicle. See the USDOT news release.

These types of vehicle rollovers and roof crush are absolutely unacceptable, and a Rollover Personal Injury attorney can assist you with prosecuting this case with the right mix of investigators and experts.

Ebay is a global phenomenon. Recently, the sellers on such auction sites have come under greater scrutiny for potential violation of state consumer fraud acts including Texas. The relevant consumer protection act in Texas is the Texas Deceptive Trade Practices Act .

The state consumer fraud act carries a treble damages award, which means a victim can be awarded three times the amount of their actual loss. The law can be triggered when sellers exaggerate about merchandise sold online, through classified ads including Craigslist, and even flea farms or garage sales.

In NJ, the Supreme Court is weighing the case of a 1970 Corvette convertible , which was described as being "in good condition". After the buyer paid well over $13K for the car on Ebay, he found upon receiving shipment that the vehicle was undriveable and he wound up spending $40K just to restore it.

The seller sued for breach of contract, common law fraud, negligent misrepresentation, and violations of the Consumer Fraud Act. The lower state court awarded compensatory damages of $8561, but he also found the seller liable under the Consumer Fraud Act, trebling the damages to $29,953 and awarding $29,950 in counsel fees and $6,544 in court costs.

Under many state Consumer Fraud Acts, liability can generally only attach to dealers, limiting the law's application to retail and wholesale sellers. Yet many legal counsel in the consumer fraud arena believe consumer fraud acts should apply to "any person" who commits an act of fraud in the sale of a product.

If you believe you have been a victim of consumer fraud, contact your San Antonio and greater Texas consumer fraud attorney today.

As a follow up to our last entry on defective vehicle door latches in which persons are ejected through the door, San Antonio and Texas are seeing a rash of auto accidents in which occupants are being ejected through the vehicle window. The problem is especially acute in rollovers and other car crashes.

Why does this happen? First, the side roll down windows are made of glass that will disintegrate into thousands of small pieces facilitating ejection. Yet the fact of the matter is that the glass should possess an interlayer of plastic to guard against ejection i.e. a form of laminated glass. When auto makers do not employ this laminated glass, they place occupants at great risk of ejection - all in the name of saving less than $20. It is a design defect for which they should be held accountable.

In the last 30 years, auto makers have done crash tests on vehicle with unseatbelted dummies. When laminated side glass windows are used, the dummies are not ejected. Laminated glass side windows are just as safe as the older, more dangerous design.

A San Antonio and greater Texas personal injury attorney will be able to guide you through the tragic consequences of ejection as a result of the failure to use laminated glass.

Why do we hear about passenger and drivers being ejected out of a vehicle during an accident? What happened - how are they ejected through the car doors?

The answer is simple : the door latches unlatch due to particular inertia forces caused by the accident or a compression of the rod in the door latch as a result of the twisting of the vehicle. Yet a San Antonio and greater Texas personal injury attorney will tell you that door latches are simply not supposed to come unlatched during a car crash. If the door came open when a vehicle went through a rollover or an accident in general, then there is most certainly a design defect in the latch.

Can you believe that the auto industry has known for decades about a solution to keep door latches from unlatching ? The solution is called a Bowden cable - it costs less than $10 and is a suitable substitute for the customary rod in the door latch setup. Manufacturers have also developed door latches that will not be affected by inertia forces.

It is imperative to preserve evidence and consult with the necessary greater San Antonio and Texas legal experts when you or a loved one have suffered devastating injury as a result of being ejected from a vehicle.

Throughout San Antonio and greater Texas, stories abound of deadly vehicle fires, that burn, maim, and ultimately kill drivers and passengers. There are many potential explanations behind vehicle fires. Some of the most common defects include electrical problems, leakage of gasoline from the fuel lines, and the ignition of transmission fluid. A strong Texas auto accident personal injury attorney will be able to pinpoint automotive defects including defective electrical devices, transmissions, and/or ignition switches.

It is a well known fact that the automotive manufacturers do not adequately protect the gas tank, which can inevitably cause the gas tank to be punctured and lead to fuel ignition. An automobile must be designed with effective inertia shutoff devices which stop the flow of fuel druing a crash. Ultimately, vehicle fires are a preventable occurrence if the car is adequately designed.

If you or a loved one have been seriously injured by a vehicle fire, consult a Texas personal injury attorney to guide you through the process of preserving evidence and retaining the right experts to defend your claims.

In San Antonio , Texas, and throughout the United States, an interesting problem is occurring - you have your seat belt on as an occupant in a car accident and the official police report says you did not have the seat belt on. You are angry and upset, because you know that you did in fact have your seat belt on. The Texas Department of Public Safety like many states offer specific occupant restraint laws .

Unfortunately, the crash impact can actually cause the seat belt to detach without any evidence of damage. After the accident, the seat belt functions without a problem, and there are no stress signs on the webbing of the belt, plate where the belt latches, and the metal D-ring.

Do not fret - even if a traffic investigation report reflects that the seat belt was not worn, you may in fact have a good seatbelt defect case .

The phenomenon behind seat belt defects lies in the application of G forces created by the crash. The G forces create enough energy to move the buckle with vibration. The vibration can effect the spring that latches the buckle, in effect forcing the button to release the seat belt to move downward. A passenger's hip can also create enough force to unlatch the belt.

The unlatching of the seat belt is known as 'inertia unlatch'. Seatbelts can be designed in such a way that inertia unlatch does not occur - yet, ironically auto manufacturers will not implement these latch designs. During a crash, an occupant can be subject to severe abdominal injuries when their body moves under the lap belt. In addition, some seatbelts do not lock during crashes because of defects in the seat belt retractors.

Even in rollover accidents, investigators will find the retractors on the seat belts will lock and unlock multiple times. The slack in the seat belt caused by defective retractors can be extremely dangerous.

In the course of an investigation of an auto accident in Texas , an expert accident reconstructionist makes mathematical calculations that revolve around a physics concept : the Delta V. The Delta V represents velocity change. To illustrate, imagine your car strikes another object and decelerates from 35 mph to 25 mph. The Delta V is 10 mph.

Air bags generally do not deploy in auto accidents where the Delta V is 14 mph or less. The common misperception is that the air bags should deploy when the vehicle crashes into another object that moves after impact, causing people to believe the Delta V is not great enough to trigger air bag deployment.

In addition, if your vehicle or SUV is involved in a rollover, do not expect the air bag to open. Air bags open and deflate in a fraction of a second - their main function is to protect on the initial impact but they do not provide continuous protection.

Federal Motor Carrier Vehicle Safety Standard 571.208 covers occupant crash protection and air bags.

Do you have an air bag defect case ? There are sensors in the air bags that evaluate crash data and those sensors could be defective. The sensors feed information to an air bag computer that sends signals to the air bag to open. There may be defects in the computer as well. There may also be late deployment of air bags, which may also be attributable to defects.

A proper investigation of a potential air bag defect case requires an accident reconstructionist to evaluate the air bag computer data.

Texas and the greater Southwest region has witnessed a spate of egregious nursing home neglect cases. Nursing homes know that the age of the victim will scare away many attorneys and they blatantly put dollars ahead of the well-being of the powerless.

A San Antonio Texas nursing home negligence attorney looks for certain key elements involved in the care of the elderly plaintiff including Stage III-IV pressure ulcers; symptoms of malnutrition and dehydration; fractures and spinal injuries from falls; and errors in dispensing medication.

The federal government has enacted strict regulations on nursing homes that demand compliance. Under the Nursing Home Reform Act , any facility receiving Medicare / Medicaid funds must tend to a resident's ability to eat, bathe, and toilet. The resident must be properly cared for so as not to develop pressure sores, and they must be adequately supervised to prevent accidents.

The Texas Department of Aging and Disability Services provides assistance and mechanisms for lodging complaints concerning nursing home abuse.

A nursing home negligence case in San Antonio and greater Texas requires extensive document review and investigation by a variety of doctors, nurses, and nursing home administrators.

More often than not, a Texas personal injury attorney will need to employ an expert in a complex personal injury case, especially those involving complex auto accidents or product liability cases. The United States Supreme Court has decided several landmark decisions that define acceptable experts and their testimony. Those cases include Daubert v. Merrel Dow Pharmaceuticals and Kumho Tire Inc. v. Carmichael . However, the plaintiffs' bar is discovering that more experts are being disqualified at an alarming rate.

Many times, once the plaintiff's expert has been disqualified, the defendants will win on summary judgment, because the plaintiff can no longer prove causation. Texas has tightened standards in some cases. For example, some Texas courts have taken the position that a substance alleged to be cancerous, such as benzene, must have evidence indicating a 100% increase in the cancer rate over the general population. In other cases, judges have been known to exclude animal studies of product exposure as being unreliable despite the fact that animal studies are routinely used in Food and Drug Administration (FDA) and Occupational Safety and Health Administration (OSHA) risk assessments.

In the past, courts often looked favorably on the local certified engineer or registered professor to testify on behalf of the injured plaintiff. That is no longer the case. These days, especially in the area of products liability and testimony regarding a defective product, the only acceptable expert will be one who was involved in the design of a similar product.

In addition, a test of basic scientific principles by a local expert may not be acceptable to the court on account that the test is not recognized by the scientific community and has not been deemed a reliable test in a peer reviewed journal.

As you can see, it is very likely that experts and their scientific evidence which the courts once accepted, could now be excluded. Once a court excludes an expert, then defense lawyers take the exclusion order to other courts where that expert will testify and try to use the order to disqualify the expert again.

To properly navigate this growing system of expert exclusion, a San Antonio and Texas products liability attorney must have experts who were previously employed in a similar industry (for example, the pharmaceutical industry) and who were involved in the design of a similar product. Rigorous research is needed to make sure the peer publications are strong enough to back the expert opinion and that his method of research is accepted as a reliable. The more scientific evidence published by the expert in a journal of his / her peers, the more likely, the expert will be Daubert-proof.

In our last entry, BLF discussed the trends in San Antonio and greater Texas personal injury cases involving parental liability for the negligent acts of their children. We covered parental liability for the use of dangerous instruments especially where the parent(s) know their children are using dangerous instruments and may have violent tendencies. The common dangerous instruments are ATVs and guns, including non-lethal paintball guns.

In this entry, we discuss claims involving a minor's use of an automobile (including motorcycles) which harms another. The common tort for a parent's civil liability is known as a claim for negligent parental entrustment of a motor vehicle. The basis for such a claim is two-fold. First, the parent must have exercised some control over the vehicle. Second, the parent must know of a child's tendency to drive recklessly.

The fact that a parent owns a vehicle under many Texas Supreme and state court decisions is not enough to qualify under the claim of negligent parental entrustment. In fact, many courts throughout the nation have stated that a parent may have to be physically present while the child was operating the vehicle in order to hold the parent liable for negligent entrustment of a motor vehicle. You should consult with a personal injury for the latest requirements on a negligent entrustment claim.

In addition, with respect to a parent's knowledge of a child's propensity to drive recklessly, some courts have ruled that a parent's knowledge of prior traffic accidents may not qualify as knowledge. Courts have ruled that the existence of prior motor vehicle accidents involving teenagers does not necessarily reflect knowledge by the parents of a tendency to drive recklessly. Because claims are very fact specific, and the law is always changing, consult with a greater San Antonio Texas personal injury attorney. Reckless teen driving is always a potential negligent entrustment claim.

Parents should also be aware they can be held liable for alcohol consumption by a minor child which causes injury to others. The Texas courts are very specific that parents can be held civilly liable where they furnish alcohol to the minor. Texas laws for furnishing alcohol to minors under the Texas Alcoholic Beverage Commission (TABC) permits liability where a party is injured by an intoxicated person under age 21 and the parent furnished alcohol to the minor. Parents should be ultra vigilant where they encourage alcohol consumption by minors in San Antonio and greater Texas.

Generally, parents will not often be assessed civil liability for the negligent acts of their children. However, in situation where parents did not properly supervise their children's use of dangerous instruments such as ATVs and guns, including paint ball guns, there is potential liability. In addition, liability for a minor's use of a motor vehicle or consumption of alcohol can still attach to the parents. Key questions include the parent(s)' knowledge of violent propensities by the child in the case of dangerous instruments. Check with your greater San Antonio Texas personal injury attorney for your options if you have been personally injured by a minor.

Your child has committed some form of negligence in Texas resulting in a personal injury to another person. Are you as the parent responsible for your child's negligence ? To what degree ? These are common questions being played out by San Antonio and greater Texas personal injury attorneys throughout the state and nation.

When faced with potential causes of action against parents of children who have committed negligent acts, several theories of liability may be utilized. The first theory is a failure of the parent(s) to supervise. The second theory is the parent allowing a child to operate a motor vehicle or dangerous objects. The final theory of liability surrounds personal injuries from drug or alcohol intoxication .

Several states subscribe to the rule that parents cannot be held liable for a failure to properly supervise their children. Yet there are certain situations in which a parent could very well be held civilly liable for the actions of their children. Those situations arise where parents negligently entrust their children with "dangerous instruments".

A common form of dangerous instrument is a gun. However, many Texas and San Antonio residents would be surprised to learn that even a paintball gun can be classified as a dangerous instrument. The implication is that theoretically parents can be held liable where their child used a paintball gun to cause an eye injury to another minor, particularly in situations where the injury was caused outside an actual paintball game. Gun safety particularly in Texas with its abundant outdoor hunting opportunities is a serious issue for any parent to consider.

In other cases, a Texas All Terrain Vehicle (ATV) has been upheld to be a dangerous instrument. Juries have determined that due to the speeds associated with such a vehicle, and the ability of a passenger to hold on to the driver while seated, an ATV is a dangerous instrument.

The key question in many Texas personal injury cases is whether the parent was in fact aware that the child possessed the dangerous instrument. Another secondary factor is whether the parents knew of any potentially violent propensities of the child to hurt others. Generally, if it can be shown that the parent(s) did not know that the child possessed a dangerous instrument or knew of any violent predispositions of their children, Texas negligence claims for negligent supervision of children will fail as to the parents.

Enjoy the video - Baseluos Law Firm (BLF) will cover parental liability for their children's negligent use of auto and minor alcohol consumption.

Whether you have been the victim of an automobile accident, medical malpractice, or some other form of personal injury negligence in Texas or anywhere in the nation, a strong personal injury attorney must know how to document your limitations and the effects of the injury on your lifestyle and work capacity. Documentation of limitations is also critical to Workers' Compensation and Social Security Disability . The easier it is to understand, the easier for a jury or judge to justify a high judgment for your damages.

A San Antonio personal injury attorney will paint a clear picture of your damages by engaging experts to perform very focused evaluations including:
- Hand / Upper Extremity Functional Capacity Evaluations;
- Daily Living Skills tests;
- Back Exams for spinal and neck injuries;
- Work and Vocational Assessments;
- Ergonomic Evaluations; and Occupational Therapy.

The key for a jury is to see the link between the medical evidence provided by doctors and the vocational findings that impact a person's employability. It is not enough for an attorney to argue to the jury or judge that you suffered a major back injury. A strong Texas personal injury attorney will use experts to demonstrate the effect of the injury on a person's daily performance and how simple daily tasks have become incredibly difficult. This technique truly demonstrates the tremendous impact of the injury in a way juries can relate to.

For victims of negligence , your attorney may use Occupational Therapists who perform Functional Capacity Evaluations (FCEs) to assess a person's work capacities. FCEs are used with vocational evaluations to provide performance-based information that is critical to Workers' Compensation and Social Security disability claimants.