Alaska Injury Law Blog

The Alaska Supreme Court recently issued a decision with important practical implications for individuals with personal injury claims in Alaska. In a case handled by Alaska Personal Injury Group attorney Neil O'Donnell, the Court ruled that a negligent driver (who was insured by State Farm) had to pay 75% of the plaintiff's attorney fees for not accepting plaintiff's earlier reasonable settlement offer. Yaple v. Okagawa, Opinion No. 6494 (July 16, 2010). Under Alaska Civil Rule 68, if a party makes a settlement offer and beats that offer by 5% or more at trial, the other party has to pay up to 75% of the offering party's attorney fees. The issue before the Alaska Supreme Court was how to calculate this attorney fee award for a prevailing plaintiff who hired his attorney on a percentage contingency fee basis.

Seventy five percent (75%) of a contingency fee may be much smaller than 75% of the attorney fees calculated on an hourly basis (i.e., the hours worked by the attorney multiplied by the attorney's normal hourly billing rate). Plaintiffs in Alaska with modest claims previously faced the risk of having to pay a large attorney fee award to the defendant if they did not "beat" the defendant's offer of judgment while only receiving a modest attorney fee award if they instead prevailed. In the case handled by the Alaska Personal Injury Law Group, the Alaska Supreme Court ruled that Rule 68 attorney fee awards could be calculated for both defendants and plaintiffs on an hourly basis even if the plaintiff hired his attorney under a percentage contingency fee. This ruling affirmed an attorney fee award to Mr. O'Donnell's client that State Farm had argued was far too large.

The bottom line is that this decision substantially increases the incentives for insurance companies to accept reasonable settlement offers (instead of delaying, litigating, and hoping that claimants will eventually settle for less), at least when injured individuals are represented by competent counsel and the insurance company knows that their attorney is willing to go to trial.

Okagawa v. Yaple, Opinion No. 6494 (July 16, 2010), accessed at: http://www.courts.alaska.gov/ops/sp-6494.pdf

Two attorneys with the Alaska Personal Injury Law Group, W. Michael Moody and Richard E. Vollertsen, were selected to be listed in Alaska Super Lawyers 2009, a publication of Thomson Reuters.

Mr. Moody received his law degree from the University of Arizona in 1972 where he served as Editor-in-Chief of the Law Review and received the academic award of Order of the Coif. He served as a law clerk to Judges Thomas Stewart and Victor Carlson in Juneau before moving to Anchorage. Mr. Moody has practiced law in Alaska since 1975 specializing in representing those injured by negligence or defective products, and claims against insurance companies for fraud and bad faith conduct against their policyholders.

Mr. Vollertsen was also selected as an Alaska Super Lawyer. Mr. Vollertsen has been a member of the Atkinson, Conway & Gagnon law firm since 1982. His practice includes complex litigation matters primarily involving products liability, wrongful death, and personal injury. He served as Law Clerk to Chief Justice Edmund Burke of the Alaska Supreme Court. Mr. Vollertsen was also editor-in-chief of University of San Francisco Law Review, 1980-81, and contributing editor to Alaska Court Review, 1983-2000. Mr. Vollertsen was also named by Best Lawyers in America as Alaska's "Personal Injury Lawyer of the Year" for 2009.

The rigorous merit-based process used for Super Lawyers selection includes an evaluation of each candidate based on 12 indicators of peer recognition and professional achievement: verdicts and settlements; transactions; representative clients; experience; honors and awards; special licenses and certifications; position within law firm; bar and or other professional activity; pro bono and community service as a lawyer; scholarly lectures and writings; education and employment background; and other outstanding achievements. This ranking is then followed by a peer evaluation from other Alaskan attorneys in the practice area. The final candidates selected were those with the highest point totals from each category, and included only five (5) percent of all attorneys in Alaska.

Mr. Moody and Mr. Vollertsen are also all AV rated by Martindale Hubbell, the highest national rating for legal ability and ethics, and have been listed in the Best Lawyers in America for over 10 years.

Bruce Gagnon, Robert Dickson, Patrick Gilmore and Jerry Juday, also with the Atkinson, Conway & Gagnon law firm, were also selected as Alaska Super Lawyers in their respective areas of practice.

Despite a great deal of room for improvement, our roads and highways have become significantly safer over the past decade -- just as long as you are not on a motorcycle. The number of annual total vehicle fatalities trended downward from 41,501 fatalities in 1998 to 37,261 fatalities in 2008, an 11% decrease. During this same ten-year period, the country's population increased 11% from 270 million to 304 million. Expressed on a per mile basis, the overall fatality rate decreased from 1.58 fatalities per 100 million vehicle miles in 1998 to an historic low of 1.25 fatalities per 100 million vehicle miles in 2008. These statistics make the fatality rates for motorcyclists all the more surprising and disturbing. Total annual motorcyclist fatalities increased from 2,294 in 1998 to 5,290 in 2008, a 231% increase. While partially explained by increased population and ridership, the fatality rate on a per-mile basis still went up significantly from 22.3 fatalities per 100 million vehicle miles in 1998 to 36.6 fatalities per 100 million vehicle miles in 2008, a 64% increase. As also apparent from these statistics, you are 29 times more likely to die per vehicle mile on a motorcycle than in a car or truck. There are varied causes for these adverse motorcycle statistics, including other drivers failing to "see" motorcycles, but the trends and overall results are not good.

Source: http://www-nrd.nhtsa.dot.gov/Pubs/811171.PDF

As noted in a recent post here, Allstate has instituted a systematic, nation-wide claims handling system designed to drive down the amount of money it pays on personal injury claims. That system came under review in a recent New Mexico case where five individuals sued Allstate for "low balling" their auto personal injury claims. The Court found that Allstate had violated fair claims handling requirements "by not attempting to effectuate . . . prompt, fair and equitable settlement[s]," "compelling each of the plaintiffs to litigate their claims through a jury trial to final judgment," and improperly using the judicial system in "an attempt to delay or extort each of the plaintiffs into accepting less than the full value of their benefits under their policy." The Court found Allstate's conduct constituted "malicious abuse of process." Martinez et. al. v. Allstate, Case No. D-0101-CV-200400963, County of Santa Fe, First Judicial District, oral order dated 11/13/09). This case illustrates that injured individuals often receive Allstate's promised "Good Hands" treatment only if they accept Allstate's "low ball" settlement offers. Otherwise they are subject to -- as an Allstate consultant put it -- the "Boxing Gloves" treatment. Be prepared to put on your boxing gloves when dealing with Allstate!

Over the last decade, Allstate and other insurance companies have adopted highly standardized claims handling systems designed to drive down the amount of money they pay on personal injury claims. These systems generally involve (1) reducing the percentage of injured individuals who hire an attorney by quickly contacting such individuals, building rapport with them, and making early (and low) settlement offers; (2) using main-office-controlled computer programs to provide low "recommended" claim settlement values to their adjustors; and (3) implementing a policy of vigorously litigating with injured individuals who do not accept the insurer's low-ball settlement offers. For example, the Montana Supreme Court last year noted that there was a "high probability" under Allstate's claims handling system that "an unrepresented claimant would receive less than a represented claimant." Jacobsen v. Allstate, 215 P.3d 649, 659 - 60 (Montana 2010). Likewise, the federal district court stated in Wells v. Allstate, 210 F.R.D. 1, 4 (D. D.C. 2002), that "Allstate concedes that claimants represented by counsel receive settlements two to three times greater than those who proceed without counsel, and admits that the goal of [its redesigned claims system] was to reduce the level of attorney representation." If anything, these observations are understated. Internal Allstate documents from that redesign effort state, for example, that "Opportunity [to save Allstate money] is driven by attorney involvement . . . Payments on represented claims is on average five times the size of uprepresented claims . . . Attorney representation can be reduced." Insurance companies do not want to you to consult with an attorney for a reason, and that reason is to save them money.

One of the difficulties faced by our clients who have suffered "mild" traumatic brain injury (TBI) is that there has been no objective means of establishing that brain injury exists even though the clinical signs of dysfunction are present. This has often resulted in clients not getting the medical care that would help them with their rehabilitation, or they have suffered the undeserved claims by defense practioners that they were "malingering" or "magnifying" their symptoms.

Two new studies support the early data on the efficacy of a new MRI tool--diffusion tensor imaging--in the diagnosis of traumatic brain injury (TBI). Diffusion tensor imaging allows the care provider to visualize the brain's white matter, which contains the fibers that connect nerve cells. Conventional MRI would commonly not reveal any differences between the patients with mild TBI and controls. DTI, however, is finding objective evidence on imaging that is consistent with a positive finding on neuropsychological testing.

One study at the University of New Mexico has found that diffusion tensor imaging can be used to reliably detect and track brain abnormalites in patients with mild TBI. The study compared patients with known mild TBI and found that conventional MRI did not reveal any differences between those with TBI and control subjects. The diffusion tensor imaging, however, demonstrated white matter abnormalities in the subjects known to have TBI. Thus, the technique was successful in finding objective evidence of injury when conventional MRI failed to do so. Another important finding was that, when the patients found to have such abnormalities were evaluted with diffusion tensor imaging 3-5 months later, a period by which recovery is expected, the diffusion tensor imaging was able to track these white matter changes, as well. The study concluded that diffusion tensor imaging can provide an objective biomarker that can assist in the classification and tracking of mild TBI injuries and their effects.

With this kind of literature developing about the effectiveness of diffusion tensor imaging, we expect this imaging technique to provide patients with better diagnosis and treatment. The reader may also be interested in our previous reports about this literature, here, and here.

Sources:

Mayer, AR et al. “A Prospective Diffusion Tensor Imaging Study in Mild Traumatic Brain Injury.” Neurology, February 23, 2010, Vol. 74, pp. 643-650.

Bigler, ED and Bazarian, JJ. “Diffusion Tensor Imaging: A Biomarker for Mild Traumatic Brain Injury?” Neurology, February 23, 2010, Vol. 74, pp. 626-627.

The Journal of the American College of Cardiology has just published a review of 44 years of research and has concluded that herbal products can contribute to cardiovascular morbidity and mortality. The risks noted include increased bleeding, and reducing or increasing the effect of a patient's cardiovascular medications, Many of the ingredients used (aloe vera, ginkgo biloba, ginseng, and green tea) can interact with a patient's heart medications and lead to serious adverse reactions. For example, some ingredients increase the blood levels of statins, calcium channel antagonists, and several anti-arrhythmic drugs. Another herbal ingredient is known to inhibit platelet aggregation and can lead to increased bleeding risk when the patient is also taking anti-coagulants such as aspirin, Plavix, or Coumadin. Some ingredients (garlic, ginkgo biloba, ginseng, saw palmeto) can have their own cardiovascular effects, and some can induce arrhythmias on their own. The authors, all Mayo Clinic physicians, have called for increased regulation of the products.

Sources:

"Use of Herbal Products and Potential Interactions in Patients With Cardiovascular Diseases," Journal of the American College of Cardiology, 2020; 55:515-525.

Medpage Today, 2/1/10.

Litigation by the Alaska Personal Injury Law Group has been cited in the Journal of Clinical Pharmacology & Therapeutics for its role in aiding the FDA in its decision to finally rule that ephedra products were adulterated under the Federal Food, Drug, and Cosmetic Act. The litigation, Talbert v. E'ola Products, Inc., 3AN-97-4046, was handled by Richard E. Vollertsen and arose out of stroke injuries suffered by a young woman using an ephedra weight loss product that had also been spiked with ephedrine hydrochloride.

Source:

"Clinical Pharmacology and Dietary Supplements: An Evolving Relationship," Clinical Pharmacology & Therapeutics, Vol. 87, No. 2, Feb. 2010.

The USDA has recalled 17,235 pounds of Daniele International salami because it is suspected of being contaminated with salmonella. To date, over 203 individuals have been sickened in 42 states, including one here in Alaska. Costco, a local retailer, is one of the retailers that has sold the company's products.

Most persons infected with Salmonella develop diarrhea, fever, and abdominal cramps 12–72 hours after infection. Infection is usually diagnosed by culture of a stool sample. The illness usually lasts from 4 to 7 days. Although most people recover without treatment, severe infections may occur. Infants, elderly persons, and those with weakened immune systems are more likely than others to develop severe illness. When severe infection occurs, Salmonella may spread from the intestines to the bloodstream and then to other body sites and can cause death unless the person is treated promptly with antibiotics.

Sources:
Feb. 1, 2010, USDA

January 31, 2010, USDA

CDC Investigation of Multistate Outbreak of Salmonella

Researchers from the UK, Sweden and the US have established that using drugs purchased from the internet can kill and cause patients to bypass health systems that could diagnose life-threatening problems. They estimate that 90% of counterfeit drugs are sold via the internet, which has spawned global sales of over $75 billion, sales which have increased 92% in the last 5 years.

The findings are set out in an article in the International Journal of Clinical Practice. The researchers reviewed over 50 studies published since 1995. The data particularly focused on erectile dysfunction medication, and showed the over 44% of these drugs were fake. The consequences were dire for some, including 150 men admitted to hospitals after taking counterfeit tadalafil and herbal preparations that claimed to cure the dysfunction. Seven were comatose and four subsequently died. Two pregnant women died after being given injections of a counterfeit iron preparation for anemia. Fifty-one children died of kidney failure after taking paracetamol syrup contaminated with glycol, an antifreeze used in cars.

We have previously reported on the problem of herbal preparations being spiked with prescription medications here, here, here, here and here.

Source:

Jackson et al. Counterfeit phosphodiesterase type 5 inhibitors pose significant safety risks. International Journal of Clinical Practice, 2010

The public is often clueless about the true malice some corporations demonstrate in their willingness to put people's lives in jeopardy for the sake of profit. The anti-plaintiff rhetoric of recent years has reached a fevered pitch with little understanding that to give into it undermines one's constitutional right to a jury trial and the ability of a single person to use the courts to stop corporate wrongdoing when the government has failed to act. And the news tells us each day how ineffective government can be in this regard--because it is slothful, because it has been bought off with lobbyists, or because it is unwilling to challenge the prevailing political prediliections of the party in power at the moment.

We see corporate deceit in many of the cases we handle, so we get hardened to it. Sometimes we see a story, however, that amazes even us. This is one of them. A St. Petersburg, Florida company, Youth Research, had been hired to perform child safety tests on cigarette lighters. It has now been found to have falsified the tests and to have submitted fraudulent reports to federal regulators. The discovery of the fraud has prompted the Consumer Product Safety Commission to order 12 lighters off the market until they have been retested.

The CPSC implemented lighter safety standards after research showed that children under the age of 5 had inadvertently started 5,900 residential fires resulting in 170 deaths and 1,150 injuries in a two-year period. The standards require that panels of 100 children be given dummy lighters to see if they can activate the lighters. A lighter would pass only if 85% of the children could not activate it. In creating the fraudulent test results, the company altered birth dates and identity records and eliminated data that showed that a child could ignite the lighters.

The woman at the center of the fraud, Karen Forcade, has now pleaded guilty to fraud in federal court.

Sources:

St. Petersburg Times, January 23, 2010.

The Tampa Tribune, January 24, 2010

United States of America v. Karen Forcade, U.S. District Court, Middle District of Florida, Case No. 8:09-CR-544-T-27TBM.

Today's news is that gingko biloba, touted since the 1970's by the diet supplement industry as an herb that would improve memory or forestall cognitive decline in aging or in dementia, has been found to be useless. As routine scientific scrutiny has been applied to the nostrums of the industry in recent years, we see these "ancient healing" claims fall one by one: chondroitin and glucosamine for osteoarthritis, vitamin E and selenium for prostate cancer, or vitamin E and C for prevention of cancer or heart disease. (Indeed, recent studies have shown that the use of vitamin therapies can sometimes increase the risk of disease, as in folic acid increasing the risk for precancerous polyps or higher lung cancer rates for those trusting to beta carotene supplements.) When asked for data in support of their claims of efficacy, the industry simply trots out the claim that the Chinese have used the product for 5,000 years or that sharks never get cancer. By doing so, they seek to avoid the hard work of any scientific endeavor, i.e., proving that their product works.

As for the safety of these products, the industry has repeatedly picked the pockets of consumers with this magical thinking: "it is all-natural, so it has no side-effects but it works better than drugs." Of course, for a compound to work, it must have an effect, which means it is capable of affecting the body and causing side effects. It can't be effective and affect the body positively but never affect the body negatively. If it can affect the body at all, it is capable of having side effects, period. It is as if they were saying, "yes you can have the money and never pay taxes on it." Yet, we know that the IRS always gets its piece. And, herbals and diet supplements will always tax the body--there are always side effects.

We can't blame the industry, because we let them get away with selling billions of dollars of useless or dangerous or tainted products. We let Congress take money from the industry's lobbyists to pass DSHEA and dodge the effective regulation of the marketing and manufacturing of these products. We let the diet supplement industry tell consumers, "Ego exigo, proinde is est bonus,"...."I sell it, therefore it is good." We do not demand that the marketeers prove their case that a product is safe or efficacious, the simple standard the drug and OTC industries must meet.

Today's news comes to us from the Journal of the American Medical Association reporting on a study of over 3,000 people between 72 and 96 who were followed for over 6 years. None had dementia before the study began. Those who took the supplement fared no better than those who took a sugar pill in tests examining memory, language, attention, and other measures of cognitive function.

With annual sales of gingko biloba of over $250 million dollars, the industry could well afford to pay for its own testing for safety and efficacy. But, instead we paid for the testing with public funds. We let that happen, too.

Sources:

Snitz BE, et al "Ginkgo Biloba For Preventing Cognitive Decline In Older Adults" JAMA 2009; 302(24): 2663-70.

Diet Supplement Glucosamine No Better Than Placebo, February 20, 2008

New York Times, Extra Vitamin E: No Benefit, Maybe Harm, March 24, 2009

New York Times, Vitamin Pills: A False Hope?, February 16, 2009