Milwaukee Personal Injury Lawyer - General Personal Injury

Tree Stand Manufacturer Settles Suit By CPSC

David Lowe — Fri, 11 Jan 2008 13:47:38 GMT

Ardisam, Inc. of Cumberland, Wisconsin is paying $420,000 to settle a suit by the Consumer Product Safety Commission alleging that it failed to report personal injuries suffered by hunters using its tree stands when the stands unexpectedly detached from trees.

Even though the company allegedly became aware of at least nine injury incident reports as early as 2000, the company did not report the matter to the CSPC until July, 2004 when it recalled the tree stands, which were marketed under the names "Big Foot" and "Lite Foot". Under federal law, manufacturers, distributors and retailers are required to immediately report to the CPSC information about products that could create a substantial risk of injury or that create an unreasonable risk of serious injury or death. In making the settlement, the company did not admit that it violated the law in this case.

Certainly, a $420,000 payment to the government is no small matter. But it is a modest hit for a company that manufactured 78,000 of these products at prices ranging beween $60 and $120. When a manufacturer learns that people are becoming injured from use of its product and knowingly fails to take action to remove the product from the market, punitive damages would serve as a far more convincing deterrent. There is no substitute for a civil justice system that can deliver powerful sanctions against corporate wrongdoing.

For more information on this subject, please refer to the section on Defective and Dangerous Products.

Originally posted at InjuryBoard by David Lowe

Problems Persist For Brain Injury Victim

David Lowe — Tue, 02 Oct 2007 07:07:45 GMT

Brain injury can result in physical limitations, such as quadraplegia or paraplegia, as well as mental limitations, such as loss of memory and other cognitive functions. An interesting and tragic account of one man's traumatic brain injury appears in today's Milwaukee Journal Sentinel. Elliot Lubar, a well known executive of a social services agency that provides counseling services to children and their families, was injured while attending a Green Bay Packers game in November, 2004 when bowled over by a man running after another who had stolen his hat. Lubar was thrown to the ground, striking his head. While a lawsuit brought him some compensation, he suffered the loss of his job, the end of his 40 year marriage, and a long and continuing struggle to adjust to the permanent loss of some of his mental functions. His story is well worth reading for brain injury victims and their families.

For more information on this subject, please refer to the section on Head and Brain Injury.

Originally posted at InjuryBoard by David Lowe

Liability Insurance Hard to Find After Dog Attack

David Lowe — Wed, 26 Sep 2007 06:55:39 GMT

A column in today's Milwaukee Journal Sentinel by Jim Stingl describes a dog owner's problem obtaining liability insurance following an incident in which her dog ran out of the yard and bit a neighbor. Because Wisconsin has a statute (174.02, Wis.Stats) that awards double damages to a victim of a dog that has bitten before, most liability insurers will refuse to insure a homeowner who does not get rid of the dog, and apparently some require evidence that the dog has been put down before accepting the business.

Dog attack settlements can be large, especially for children who sustain facial scars and emotional trauma. With the prospect of double damages for victims of dog attacks where the dog has bitten before, it is not surprising that the insurers would refuse the risk. Dogs are often unpredictable and when unleashed they are usually uncontrollable--exactly the kind of risks insurers avoid.

One can sympathize with pet owners faced with this predicament, but it does promote safe practices by dog owners, from leashing their dogs to selecting less violent breeds. Owners are also more likely to carry higher insurance limits, which operates to protect victims from going uncompensated. And where the dog has demonstrated vicious behavior, the prospect of losing liability coverage will encourage owners to consider euthanizing the animal.

Originally posted at InjuryBoard by David Lowe

Insurance Companies Accused of Fraud in Katrina Claims

Paul Jacquart — Wed, 08 Aug 2007 09:57:17 GMT

The Associated Press has reported that the U.S. Department of Justice is contemplating intervening in a New Orleans lawsuit accusing several major insurance companies of fraud for paying off engineers in order to falsify claims. The "whistleblower" suit filed in the name of two sisters who worked for a company that contracted with State Farm, names State Farm, Nationwide Insurance Co., Allstate Insurance Co., USAA Insurance Co., and several engineering firms that contracted with the companies as defendants.

The suit accuses insurance companies of pressuring engineers to falsify reports so storm damage could be blamed on floodwater instead of wind, which would shift the financial burden to the National Flood Insurance Program. The companies say their homeowner policies cover damage from wind but not rising water.

In other words, the suit alleges that the insurance companies paid engineers to say that the property damage that was done was not covered by their policies, passing the buck to the already strapped federal government and U.S. taxpayers. The Justice Department's interest lends credibility to the suit's claims. This seems to me to be a situation warranting punitive damages for insurance bad faith and fraud. If proven, this sort of conduct needs to be appropriately punished and the only way to punish a large corporation, such as the insurance carriers involved, is to hit them in their bottom lines.

Originally posted at InjuryBoard by Paul Jacquart

Collapsed I-35W Bridge Had History of Problems

Paul Jacquart — Fri, 03 Aug 2007 09:14:30 GMT

While various government spokespersons have taken to the airwaves to calm the nerves of American drivers after the tragic collapse of the I-35W Bridge in Minneapolis, the media are already examining bridge inspection and maintenance records bearing upon whether officials knew or should have known that the bridge was in poor condition, with one early report making some rather unsettling observations:

The I-35W bridge was given a low "sufficiency rating," which varies from the best score of 100 down to 0. Its score was only 50. A score below 80 indicates that some rehabilitation may be needed, while a score of 50 or less shows that replacement may be in order. This measure includes safety elements (such as structural integrity), but also factors in elements such as the bridge's size for its current traffic. Nationwide, few high-traffic bridges rated below below the Minneapolis bridge. Out of 104,348 heavily used structures, only 4,227, or 4 percent, scored below 50, or worse than the I-35W bridge.

It is unclear at this time whether the collapse of the bridge was forseeable, but the warning signs certainly seem to have been in place to alert officials of the potential for disaster. I am not familiar with the law in Minnesota, but in most states, like Wisconsin, accountability of the government to victims of such tragedies is often limited by discretionary immunity, damage caps, and notice deadlines. These legal protections are a trade off - they protect the taxpayer from footing the bill for government errors - but they leave the victims emptyhanded or nearly so. In a case like this though, one wonders whether the trade-off is an acceptable one.

Originally posted at InjuryBoard by Paul Jacquart

That's Not My Mortgage!

Paul Jacquart — Tue, 31 Jul 2007 12:33:57 GMT

The Washington Post reports that a man in Arlington County Virginia was surprised to receive notice that he had overpaid his second mortgage http://www.msnbc.msn.com/id/20044213/ because . . . he did not have a second mortgage. It turns out that a thief had stolen his wallet a year earlier and had used his identity to buy a $419,000 house with no money down! Fortunately, this identity thief had something of a conscience and had been making regular payments on the loan so the identity theft victim did not have irreperable damage done to his credit; little consolation in light of the circumstances.

While identity theft is routinely linked to empty bank accounts and maxed out credit cards, this is the first I've heard of it resulting in a home purchase. The thief in question will surely serve time for the crime committed, but the theft itself was so audacious that it should have been caught by the lender. While perhaps there are facts that have yet to be revealed about how this could have happened, Its occurence is symptomatic of the overeager "predatory" lending environment that currently exists. Had the lender taken the simplest of steps to verify the identity of the applicant, this situation could have been averted before the damage was done and the identity thief moved into her new home.

Originally posted at InjuryBoard by Paul Jacquart

Criminal Charges Unlikely in Amusement Ride Accident

David Lowe — Sun, 22 Jul 2007 13:29:20 GMT

Last weekend I wrote about an amusement ride accident in which a 16 year old girl from Menasha, Wisconsin died when she fell more than 40 feet from a ride called Air Glory while attending a Christian music festival in Oshkosh, Wisconsin.

The Wisconsin Journal Sentinel website reports this afternoon that the local district attorney is saying that criminal charges against the amusement ride operator are unlikely, based on the preliminary results of an investigation being conducted by the Wisconsin Department of Commerce, which has jurisdiction over amusement ride accidents. Winnebago District Attorney Christian Gossett commented that: "Criminal negligence is an entirely different animal than simple negligence."

Inspectors are focusing on the ride's crane structure and the safety harness, according to an internal department e-mail forwarded to the Appleton Post Crescent pursuant to an open records law request.

Criminal charges are unlikely in this scenario because of the requirement that the accused have an awareness of the likelihood of danger to the victim. Under Wisconsin Statute section 939.25, "criminal negligence" means "ordinary negligence to a high degree, consisting of conduct that the actor should realize creates substantial and unreasonable risk of death of great bodily harm to another." This requires something less than wilful and wanton conduct which, under Wisconsin law, is the virtual equivalent of intentional wrong. See, State v. Schaefer, 266 Wis.2d 719, 668 N.W.2d 760 (Wis.App.,2003).

The surviving family will likely have remedies under state tort law, where the standard is ordinary negligence. This lower standard requires proof that the defendant failed to exercise "reasonable care", often defined as the degree of care that the average person would exercise under the same or similar circumstances. And if the amusement ride operator is considered a "common carrier", which provides transportation for hire (a possible characterization of what the operator of this ride does), the standard is the "highest degree of care that can be reasonably exercised by persons of vigilance and foresight when acting under the same or similar circumstances, taking into consideration the type of transportation used and the practical operation of its business as a common carrier."

Regardless of whether criminal charges or a civil case is brought, this tragic event should hopefully cause the authorities to look carefully at the safety of these amusement rides.

For more information on this subject, please refer to our section on Wrongful Death.

Originally posted at InjuryBoard by David Lowe

Legislator Seeking End to U.W. Law Support Is Experienced Pro Se Litigant

David Lowe — Tue, 17 Jul 2007 21:33:53 GMT

Declaring that Wisconsin does not need more "ambulance chasing lawyers", Rep. Frank Lasee, Republican from Green Bay, has proposed a measure that would end public support for the University of Wisconsin Law School. The measure gained approval from the Republican controlled Wisconsin Assembly and became part of the recently approved Wisconsin Assembly's budget bill.

Appropriately, Governor Doyle responded by calling the provision "bizarre, coming out of nowhere."

Lasee's own blog proudly collects the news coverage about this lawyer-bashing bill, but also this cogent comment by Wade Garrett in response:

Tort lawyers are responsible for, among other things, getting asbestos out of our buildings, cigarettes out of our bars and restaurants, more safely designed cars and machines of all kinds, warning labels being put onto potentially dangerous products, blood transfusions screening for the HIV virus (we have John Edwards to thank for that one), hospitals having to tell patients the risk of a procedure before performing it. Very few personal injury attorneys are 'ambulance chasers,' and divorce lawyers don't make divorces ugly, the parties do.

One thing I have to admit: Rep. Lasee has acted consistently with his "too many lawyers" stance. A check of the computerized Wisconsin Circuit Court Case Access system reveals that non-lawyer Lasee has handled his own traffic violations including the following citations:

--November 13, 2006, speeding in Brown County;
--March 11, 2004 speeding in Winnebago County;
--August 18, 2003 speeding in Dane County;
--July 17, 2002 speeding in Oneida County

...as well as some other matters in family and small claims court handled by Lasee on his own. Maybe Lasee could save the State some money by lending his vast experience in traffic law to teach the subject as a volunteer instructor at the law school. Clearly, the graduating U.W. law students better not expect any fat retainers from Lasee with which to help them pay back their school loans.

Originally posted at InjuryBoard by David Lowe

Wisconsin Court Allows Clergy Abuse Victims To Sue For Fraud

David Lowe — Thu, 12 Jul 2007 08:11:37 GMT

Court decisions by the Wisconsin Supreme Court in 1995 and 1997 closed the door to the courthouse for childhood victims of sex abuse by priests, holding in John BBB Doe v. Archdiocese of Milwaukee that the statute of limitations had expired three years after the last incident of abuse and, in a case called Pritzlaff v. Archdiocse of Milwaukee, that the Archdiocese of Milwaukee was not liable for negligent supervision of its clergy because the First Amendment precluded courts from deciding that the Church should not employ sex abusers. Wisconsin is one of the only states in the nation that protected the Catholic Church from sex abuse suits on these grounds.

Yesterday, the Wisconsin Supreme Court issued a ruling in favor of clergy sex abuse victims, holding that their cases should not have been dismissed at the threshold on statute of limitations grounds without considering whether the Archdiocese had fraudulently concealed its knowledge of the sex abuse by its priests.

Wisconsin, like many jurisdictions, has a "discovery rule" that allows a tort victim to extend the statute of limitations. In the context of sexual abuse claims, the Wisconsin discovery rule extends the limitations period by the time it takes the victim, acting with reasonable diligence, to discover both that injury was suffered and the identity of the perpetrator.

But efforts to use the discovery rule to allow adult victims of clergy sex abuse to have their claims heard in court have faced tough going. For example, the Wisconsin Supreme Court had rejected victims contentions that delay in taking legal action should be excused because of repressed memory of the sexual abuse.

In yesterday's ruling, the court concluded that the date of the accrual of the fraud claims is "when the plaintiffs discovered or, in the exercise of reasonable diligence, should have discovered that the Archdiocese's alleged fraud was a cause of their injuries."

Hopefully, the plaintiffs will be able to surmount this standard. The plaintiffs in these cases alleged that they were sexually abused from 1973 to 1976, when they were children, by a now-deceased Roman Catholic priest, Siegfried Widera, after he had been criminally convicted of sexually molesting another child and the Archdiocese knew of his conviction. It was after Widera's criminal conviction that the Archdiocese moved Widera from a parish in Port Washington, Wisconsin, to St. Andrew's Parish in Delavan, Wisconsin, where Widera molested them.

The plaintiffs also alleged that the Archdiocese was informed that Widera later sexually molested an altar boy at St. Andrew's Parish and confronted Widera, who admitted he had made "a slip." Attached to the plaintiffs' complaint were notes made by the Archdiocese at the time of the assault stating that the Archdiocese would "try to keep the lid on the thing, so no police record would be made" and also that it knew the mother of the boy "feared reprisals from Church if she would go to police." Later, in 1976, the Archdiocese transferred Widera to California, falsely telling the people in Delavan that he was going on vacation. Widera molested numerous boys after his transfer to California. As prosecutors prepared to file felony charges against him in 2002, Widera fled California. The following year, Widera jumped to his death off a hotel balcony in Mexico as Mexican law enforcement agents were closing in.

These facts state a pretty good case of fraudulent concealment, don''t ya think?

Clergy abuse victims groups lauded the decision as historic, and one that would open the doors to claim by many other victims.

The Archdiocese of Milwaukee's press release "apologized":

The tragedy of clergy sexual abuse of children and, perhaps even more, the failure in the past of some within the Church to deal decisively with it long ago, will always be an ugly stain on our history. We renew our apology to all victims/survivors and repeat our sincere effort to support their personal recovery.

The Archdiocese's statement goes on to say that the Supreme Court decision requires that "the fraud claims should be returned to Milwaukee County Circuit Court for further processing, basically saying that the lower court needed to spend more time reviewing the issue before deciding the statute of limitation question. So, now, all sides will prepare and present information as part of this next step in the legal process."

Translation: Don't expect any compensation from us. Quite clearly, the Archdiocese plans to continue its resistance to settlement by hiding behind its statute of limitations defense, arguing that the victims did not act reasonably in waiting so long to make their claims. The victimization continues.

Originally posted at InjuryBoard by David Lowe

Contingent Fee Lawyers In Public Interest Cases Face Real Risks

David Lowe — Tue, 10 Jul 2007 08:15:09 GMT

Today's New York Times has published a piece by legal affairs columnist Adam Liptik raising questions about state and local governments' use of contingent fee lawfirms to handle major litigation, such as tobacco and environmental pollution cases. Most of the criticism of the fee arrangements comes out of the mouths of lawyers defending the polluters and other corporate interests, who would rather litigate against understaffed government attorneys offices than the skilled specialists who take on these high-risk, work-intensive cases. Some of the criticism contends that the contingent fee firms are making a windfall at the public expense. Other criticism suggests that if the private firms are really interested in public justice, they will be satisfied to work by the hour. Of course, paying these firms by the hour would require expenditure of public taxpayer money, making it far less likely that these important public interest cases get pursued.

I would suggest that those who criticize the arrangements look at the Milwaukee lead paint case that just concluded after a three week trial. After years of work, it appears that the private law firm hired by the city will get zilch for their efforts. The jury decided that lead paint was indeed a public nuisance, but relieved the lead paint industry of responsibility to reimburse the City for the $52.6 million spent to clean up the lead paint in some 11,000 homes located in the city's poorest neighborhoods. Here the City of Milwaukee brought an important case that established the City's standing to sue the manufacturer of a product that has caused widespread lead poisoning of children, a right that will hopefully encourage more responsible conduct from industry, and did not have to pay for those legal services under the contingent fee arrangement that some would criticize. I think the City's taxpayers got a pretty good deal.

Originally posted at InjuryBoard by David Lowe