Alaska Injury Law Blog

A new MRI muscle imaging technique has been developed that allows detailed large scale 3-D images of the body's complex muscle structures. It also provides a means of detecting muscle damage precisely. Expanding further on the utility of diffusion tensor imaging, the technique captures the movement of water molecules within muscle fibers to detect changes in fiber directions. Moreover, the technique allows reliable 3-D imaging to be captured so that the images can be viewed from different directions. It is expected that the imaging will be useful in the treatment of chronic conditions, such as post-polio syndrome and diseases causing muscle atrophy, sports injury rehabilitation, and trauma.

Source: Eindhoven University of Technology, News Release, 10/30/2012.

The long-term consequences of traumatic brain injuries are always difficult to ascertain for clients as their rehabilitation progresses. One of our concerns has always been the future risk that a client suffering from TBI would later develop Alzheimer's or other dementias. The medical literature has not established this association to a certainty. Recent data published by the Journal of Neuroscience, however, has significantly moved forward our understanding about this significant medical risk.

Using mice and post-mortem samples from human brains, scientists from Tufts University School of Medicine have found that even a single event of moderate to severe TBI can disrupt the proteins that protect the brain from the enzymes that cause Alzheimer's disease. Serious TBI can lead to a dysfunction in the regulation of the enzyme BACE1, and elevation of that enzyme causes elevation of amyloid-beta, the key component of brain plaques associated with senility and Alzheimer's disease. It is hoped that these findings will guide future research, as well as assist in the development of future drug targets to aid in the prevention of Alzheimer's.

Moderate to severe TBI is often caused by the significant forces found in blunt force trauma, falls, and motor vehicle accidents. The CDC has reported that over 1.7 million people suffer such injury annually, although the majority suffer a milder form of TBI called a concussion. Even concussions and repeated but lesser head trauma is suspected to lead to Alzheimer's, however. Alzheimer's disease is reported to affect over 5 million Americans, and is the most common cause of dementia in those over the age of 65.

Source: Depletion of GGA1 and GGA3 Mediates Postinjury Elevation of BACE1, Journal of Neuroscience, July 2012.

Mr. O'Donnell recently successfully concluded a jury trial against a defendant who caused a head-on collision on the Seward Highway. The defendant was driving her vehicle while intoxicated and had allowed her vehicle to cross the centerline.

The plaintiff, a young woman, suffered extensive hip, leg and foot injuries. The jury awarded an amount in excess of the statutory limit for non-economic damages. Non-economic damages include damages for pain and suffering, loss of enjoyment of life, disfigurement, physical impairment, and inconvenience. The total judgment, including stipulated medical expenses, totaled $4.2 million.

The Alaska Personal Injury Law Group, consisting of Neil O'Donnell, Mike Moody and Rick Vollertsen, has successfully resolved, either by way of jury verdict or settlement, numerous serious automobile claims over the past three decades. Through this track record they have developed extensive experience working with the medical, engineering and economic experts needed to successfully present such claims for their full value. Such experts include accident reconstruction engineers, biomechanic engineers, rehabilitation experts and economists.

The Alaska Personal Injury Law Group recently successfully resolved the claims of a client who was injured in a 2010 crash of a Dehavilland Beaver float plane at a remote fishing lodge is Southwest Alaska.

The crash occurred after the pilot failed to back-taxi an adequate distance on a lake before turning and attempting a takeoff run. Despite reaching his predetermined abort point without having achieved takeoff, the pilot continued toward the shoreline under full power and simply hoped for the best. The best did not occur and the plane slammed into the lake embankment under full power. Alaska Personal Injury Group attorney Neil O'Donnell successfully resolved the claim against the lodge and successfully negotiated resolution of the various lien claims by the client's medical providers and health care insurers. This matter is one of the many aviation matters the Alaska Personal Injury law group has handed over the years. The practice group has extensive experience with aviation cases involving pilot error, inadequate pilot training, mechanical problems, and design defects.

Although neuroscience has progressed in establishing the role various brain structures play in the executive functioning of the brain, there has not been solid evidence of the brain networks that support high-level cognition and general intelligence. In a new study released in the journal Brain, a fascinating picture is emerging that could support new understanding of the brain's critical functions. Scientists gathered 182 volunteers with very localized brain injuries from penetrating head wounds, and subjected them to CT scans and an extensive battery of cognitive tests. What they found was that general intelligence was derived from a particularly circumscribed neural system. Several brain regions working in connection were found to be most important for general intelligence. These structures were primarily found behind the forehead (left prefrontal cortex), behind the ear (left temporal cortex), and the top rear of the head (left parietal cortex). The data also disclosed that brain regions for planning, self-control and other key elements of executive functioning overlapped those structures found important for general intelligence. This new evidence suggests that intelligence does't derive from one brain region or the brain as a whole, but specific brain areas working together in a coordinated way.

Source:A. K. Barbey, R. Colom, J. Solomon, F. Krueger, C. Forbes, J. Grafman. An integrative architecture for general intelligence and executive function revealed by lesion mapping. Brain, 2012; DOI: 10.1093/brain/aws021

Most people know that it is a good idea to hire an attorney when entering contracts, creating a will or trust, or engaging in litigation. What you may not know is that you can, and often should, hire an attorney for arbitrations. With increasing frequency contracts contain arbitration provisions that require you to resolve any dispute through arbitration rather than through litigation. For example, when you retain the services of a broker or sign a contract with your financial advisor, that contract likely contains a FINRA arbitration clause.

The Financial Industry Regulatory Authority (FINRA) is an independent regulator of security advisors and securities firms doing business in the United States. When an investor seeks securities sales advice or purchases a security, such as stock, equity, or corporate bonds, the investor and his advisor and/or the securities firm enter into a contract. Typically the contract will include a provision stipulating that any dispute arising under the contract will be subject to the rules of FINRA.

When a conflict arises under the contract, such as if an advisor recommends an unsuitable investment, FINRA has three dispute resolution options: (1) the investor can file a complaint with FINRA against the advisor or the broker company, this is not litigation but allows FINRA to look into your complaint; (2) the investor can proceed to mediation; or (3) the investor can decide to arbitrate the conflict.

When an investor decides to arbitrate the dispute, FINRA arbitration rules dictate the rules of the proceedings. For example, an investor must first file a Statement of Claim with FINRA. Once the investor has paid the filing fees, FINRA will serve the Statement of Claim on the investor’s advisor and/or the securities firm. For claims less than $25,000, FINRA will appoint one arbitrator and the claim will be subject to FINRA’s simplified arbitration rules. If the claim is between $25,000 and $100,000, the parties each will remove arbitrators from a FINRA provided list of potential arbitrators and FINRA will appoint one arbitrator. For claims over $100,000, each party strikes arbitrators from the FINRA provided list and FINRA appoints three arbitrators.

Similar to a court proceeding, there is a discovery period, where each side shares documents and the parties attend prehearing conferences. Parties to a FINRA arbitration can represent themselves in the arbitration and prehearing conferences. However, firms and advisors are typically represented by counsel. FINRA recommends that investors hire counsel given the complex nature of securities law.

On average, a FINRA arbitration can take a little over a year from start to finish. Once decided, the ability to appeal an arbitration decision is very limited for either party. Given the finality of arbitration awards, and the complex nature of securities law, it is advisable for an investor to hire an experienced securities law attorney.

Atkinson, Conway & Gagnon attorneys Christopher Slottee and Sarah Marsey have successfully represented investors in FINRA arbitrations. Most recently in 2011 they successfully represented an investor in a six-day arbitration hearing in Anchorage, after the investor’s advisor gave misleading information about a security sale.

A new and powerful imaging technique has been developed that will allow doctors to clearly see the brain's neural connections that have been broken by traumatic brain injury and other neurological disorders. High Definition Fiber Tracking may now give doctors a means of objectively determining how brain tissue has been injured. Conventional CT or MRI scans often miss brain injuries because they show no brain changes, even though the patient continues to struggle with the devastating consequences of brain injury. HDFT is apparently able to reveal the brain's wiring in such vivid detail that pinpoint breaks in fiber tracts that contain the brain's critical neuronal connections can be found, thereby allowing doctors to identify any part of the brain that has lost its connectivity. HDFT is not widely available to patients, but may soon provide promising help in the diagnosis and treatment of those suffering from traumatic brain injury.

Source:

High-definition fiber tracking for assessment of neurological deficit in a case of traumatic brain injury: finding, visualizing, and interpreting small sites of damage.
Journal of Neurosurgery Posted online on March 2, 2012.

Sometimes even jaded lawyers are surprised by the arguments invented by the opposing party. The attorneys at the Alaska Personal Injury Group have handled a number of motorcycle collision cases, and I recently represented a motorcyclist who was injured in a "road rage" incident on the Glenn Highway. My client was riding his motorcycle in the recently resurfaced left hand lane. His friend on a second motorcycle was behind him. The asphalt had been stripped off in the adjacent lane to the right leaving the road surface in that lane extremely rough. "Motorcycles Use Extreme Caution" signs were placed at the beginning of the construction zone. The speed limit had been reduced from 65 to 55 miles per hour. The defendant was apparently in a hurry to get somewhere and pulled up within a few feet of my client's motorcycle and tailgated closely behind him. When my client - doing the speed limit - declined to move over into the next lane with the stripped and rough road surface, the defendant swung his car around him and then cut back into the left lane right in front of my client. Not content with this threatening maneuver, the defendant then stood on his brakes skidding his car to a complete stop in the left hand lane of the Glenn Highway right in front of my client's motorcycle. My client tried to stop his motorcycle before crashing into the car, with his rear wheel coming up off the pavement due to the rapid deceleration. The distance between the two vehicles was too close, the car's breaking too severe, and the motorcycle impacted the car's left rear bumper. The defendant emerged from his car yelling obscenities claiming that my client just rode up and smashed his motorcycle into the back of his car for no reason. The police were not impressed and cited the defendant for reckless driving and assault.

I sued the defendant on behalf of my client for his injuries and property loss. The defendant stuck to his story. He claimed he had not braked at all before the motorcycle just drove up behind him and rammed the back of his car. This led to a tough question for the defendant: if you did not break before the collision, why are there long braking skid marks from your car leading up to the impact site with the single braking mark from the motorcycle up on its front wheel in between your skid marks? Having no good answer, the defendant finally decided he really did not want to tell this story to a jury. Indeed, he would have been far better off with the "I'm sorry, I don't know what got into me" defense. At least that defense would not have also proved he was a liar.

Congratulations to my partner Mike Moody, and his co-counsel Dennis Mestas, for their excellent work in the Ennen v. Integon Insurance case. The Alaska Supreme Court recently held in Ennen v. Integon Insurance Corp., Opinion No. 6637 (1/20/12 Alaska), that insurance companies owe a duty of good faith and fair dealing to all their insureds, not just to the individual or the business which happens to be listed as the named insured on the policy. This is a very important decision. Insurance companies are liable for damages in tort when they breach their duty of good faith and fair dealing by, for example, hiding coverages from the insured, unreasonably low-balling the value of a claim, or unreasonably delaying or denying payment of a valid claim. This cause of action is called an insurance bad faith claim. It allows the insured to recover not just what the insurance company should have paid to begin with (before years of litigation finally made them do it), but also the additional damages the insured suffered in the meantime by not having the insurance policy benefits they should have promptly received from the insurance company. If the insurance company's improper conduct was reckless or intentional, the insurance company may also be liable for punitive damages.

In two earlier blog posts, we discussed how pervasive this type of improper claims handling is. The first post discussed the results of an 18-month investigation by CNN which concluded that many insurance companies engaged in systematic bad faith claims handling. The second post discussed an American Association for Justice Report which showed that such hardball claims tactics had gone hand-in-hand with record industry profits.

The Ennen v. Integon Indemnity decision is extremely important in light of these problems because many insurance companies (including Integon and Allstate) have taken the position that they owe no duty of good faith and fair dealing to their insureds who are not the named policy holder. A motor vehicle insurance policy typically protects many types of insureds who are not the named insured on the policy. For example, permissive drivers are covered under the liability coverage for any accidents they cause and medical payments coverage if they are injured. If they are injured by the negligence of another driver, they may be entitled to uninsured or underinsured motorist (UM/UIM) coverage. The policyholder's spouse and other resident relatives of the named insured and guest passengers are expressly included as insureds for UM/UIM coverage. If Integon's (and Allstate's) position had been accepted by the Alaska Supreme Court, they would have been insulated from bad faith claims by any of these insureds. Insurers in Alaska could have hidden policy benefits from these types of insureds; delayed their claims for years; or denied their claims entirely for no valid reason and faced no penalty whatsoever. If the insurance company got caught, it would only have to pay what it should have paid to being with.

Being able to sue for insurance bad faith, in addition to pursuing a contract claim for the original policy benefits, is an extremely important check on abusive practices of insurance companies. The Alaska Supreme Court noted that in the seven years that Integon Indemnity had failed to pay the seriously injured Jacob Ennen his rightful insurance benefits, he was at times on public assistance, unable to afford heating oil, and short on food. Insurance is supposed to protect insureds in their time of need. The Ennen v. Integon Indemnity decision creates an important, and extremely necessary, economic incentive for insurance companies to do what they promised to do in return for the premium dollars paid by the insured.

One of the increasingly common arguments I see defense experts make in our automobile collision practice and our aircraft crash practice involves the misuse of statistical evidence. Defense experts have taken the prior odds of a particular type of injury occurring in a certain type of accident and then applied that same statistical probability (which is often low) to support the defense argument that it is unlikely that a particular plaintiff suffered the injury she claims she suffered as a result of the accident. The fallacy arises from the fact that the expert is applying a probability rate derived from a large population group (everyone who was involved in a particular type of accident) to a very different and much smaller population group (individuals who claim they were in fact injured in that type of accident, who received medical treatment for their claimed condition, and then subsequently hired legal counsel and filed a lawsuit to recover damages for their claimed injuries). For example, let's assume an epidemiological study analyzes a large number of car crashes and concludes that less than 6% of vehicle occupants involved in rear impact collisions of less than 20 miles per hour had neck injuries that last more than six months. I have seen defense experts try to use this type of data to assert that it is extremely unlikely that a particular plaintiff really has the ongoing problems she claims to have because these types of symptoms usually resolve within six months. This is, however, complete statistical gibberish. The defense expert is applying the 6% statistical rate to a very different question, namely what percent of claimants who seek medical attention for their claimed continuing problems and subsequently file a lawsuit for their claimed continuing problems are really faking their injuries. The source study obviously never attempted to answer this question.

The "prior odds" statistical shell game only arises with injuries that are not objectively obvious and indisputable. A defense expert will not, for example, raise this argument where a car or aviation accident produces a compound fracture, paralysis or death. But these types of objective injuries do serve to illustrate the underlying illogic of the "prior odds" argument. Say, for example, that 6% of individuals who are involved in a vehicle rollover accident die. The forgoing defense experts are basically performing the equivalent of telling the deceased in a rollover accident that they cannot be dead because the vast majority of individuals survive rollover accidents.

Necessity is the mother of invention – in statistics as elsewhere. That is why it pays to think critically about what experts tell you, and do your research. An excellent article for further research on this subject is Forensic Epidemiology: A Systematic Approach to Probabilistic Determinations in Disputed Matters in the Journal of Forensic and Legal Medicine (2008) by Michael D. Freeman.

Most individuals who call our office recognize they can recover damages when they have been injured through the negligence of others. The wrongful conduct could be any number of things: drunk driving, running a stop sign, speeding, crashing a plane, marketing a defective product, creating a dangerous work environment. They understand the defendant will typically deny he was negligent. They are not surprised when the defendant next argues that even if he was negligent, the plaintiff's problems don't really exist, or were caused by something else, or were all pre-existing anyway. They understand that the defendant will finally argue that even if he was negligent, and even if he did cause the plaintiff's injuries, the resulting damages are nowhere as significant as plaintiff claims. Clients expect that if they ultimately prevail over all these defenses, they have won the war. Unfortunately, this is not necessarily the case.

Over the last decade, insurers and government agencies have become much more assertive in claiming priority repayment ("subrogation") rights from individuals who have received insurance or government benefits and subsequently recover damages in a personal injury or wrongful death lawsuit. This is a marked change from the traditional common law. Historically courts put the interests of the injured person ahead of the interests of insurance companies and government programs under what is called the "made whole" doctrine. Under the "made whole" doctrine, an injured person is entitled to be fully compensated for his loss before the health insurance company that paid plaintiff's medical bills is entitled to be repaid those expenses out of the proceeds of a lawsuit. For example, if a jury awarded a plaintiff $50,000 for medical expenses, $50,000 in lost wages and $50,000 for impairment, pain and loss of function, but the defendant only had $100,000 in insurance and no other assets, the plaintiff would receive the entire available $100,000 under the principle that insurance is first supposed to protect the insured.

Times have changed. Many health insurance policies and government programs have invested a great deal of effort over the past decade into re-writing policies and regulations in an attempt to abolish the "made whole" doctrine and limit other legal and equitable doctrines that place the interests of the injured person first. In general, they want to be paid first out of the funds you recover in your lawsuit, and they do not want to share any of the costs and attorney fees you incurred in producing that recovery. This has now become a very complicated area of the law. The rules that apply to one government program (Medicare) may not apply to other government programs (Medicaid, Veterans' Benefits, Workers Compensation, etc.). The interpretation and enforcement of contractual terms in insurance policies is also subject to a set of specialized statutes, regulations and case authorities. Sometimes finding an attorney with expertise in these types of specialized "subrogation" issues is as important as finding an attorney who can handle the traditional part of your claim. Now obtaining adequate compensation in a personal injury or wrongful death lawsuit often requires fighting a "two front war."

The attorneys at the Alaska Personal Injury Law Group have extensive experience in insurance matters including these types of subrogation issues. We have adopted novel responses to insurer and government subrogation priority claims. One approach relies on the unusual rule in Alaska that the prevailing party is entitled to reasonable partial attorney fees. We have told insurers that if they will not compromise the amount and priority of their subrogated interest, we will join them in the litigation as an additional defendant and make them hire an attorney and share the risk of an adverse fee award. Since insurance companies just want to sit back, share none of the risks and costs of the litigation, and have you send them a check at the end of the case, this puts them outside their comfort zone and creates a potent negotiating weapon. Winning the "second front" requires this type of strategic thinking from the outset of case.

Alaska Personal Injury Law Group member Neil O'Donnell has recently been selected for inclusion in 2011 Alaska Super Lawyers. Super Lawyers advises that "only five percent of the attorneys in the state are named to the list" and that selection is based on "peer recognition and professional achievement." Alaska Personal Injury Law Group members Neil O'Donnell, Mike Moody and Richard Vollertsen have all been selected for inclusion in both Alaska Super Lawyers and Best Lawyers in America. They have all also received the highest "A-V" ranking in Martindale-Hubbell, the oldest and best known lawyer ranking service. The Alaska Personal Injury Law Group focuses its efforts on serious personal injury, wrongful death and insurance bad faith cases. Mr. O'Donnell and other attorneys at the firm also handle claims involving the sale of unsuitable or unregistered securities, financial fraud, and other improper business practices.

Neil T. O'Donnell

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