May is a particularly perilous month for motorcycle and bicycle riders given the Alaska Personal Injury Law Group’s totally non-scientific sampling of individuals who contact our office throughout the year. After six months or more of winter, auto and truck drivers are simply not used to looking for motorcycles and bicycles. This fact shows in accident statistics, emergency room visits, and resulting claims for compensation for injuries, damaged property, and lost income. Both the number of registered motorcycles and the number of motorcycle fatalities have been increasing since 1997. In response to these statistics, the National Highway Transportation Safety Administration (NHTSA), along with state organizations such as A.B.A.T.E. of Alaska Inc., promote May as “motorcycle awareness month” with the goal of “sharing the road with motorcycles.” Motorcycles obviously have a much smaller profile than a vehicle, which can make it more difficult to judge the speed and distance of an approaching motorcycle. The initiative’s key safety messages include that: motorcycles have the same rights and privileges as any other motor vehicle, motorists should expect to see motorcycles at any time and search aggressively for them, and motorcycles are entitle to a full lane width to safely maneuver. Obviously when an accident occurs, the motorcycle and its rider are at a distinct disadvantage. NHTSA statistics report that in fatal motorcycle/automobile collisions, 98% of the fatalities were motorcycle riders and only 2% were passenger vehicle occupants. So share the road!
The National Highway Traffic Safety Administration (NHTSA) estimates that 32,788 people died in traffic accidents in the United States in 2010, the lowest number of motor vehicle related deaths since 1949. This is a remarkable achievement given that the population of the United States more than doubled between 1949 (149 million) and 2011 (311 million). The largest regional decrease in deaths from motor vehicle collisions from 2009 to 2010 (- 12%) was in the Northwest Region which includes Alaska. NHTSA has not yet released individual state statistics for 2010. NHTSA attributes the continuing decline in the number of crash-related deaths and serious injuries to various factors including increased seat belt use, anti-drunk driving campaigns, stricter drunk driving laws, graduated driver’s licenses, improved air bags, and safer road designs. See NHTSA Early Estimate of Motor Vehicle Traffic Fatalities in 2010,http://www-nrd.nhtsa.dot.gov/Pubs/811451.pdf
Christmas is the time for toys. Parents expect that toys have been designed and manufactured with safety in mind. That is not a safe assumption. Ninety five percent (95%) of the toys sold in the United States are now manufactured overseas, mainly in China. In the last 10 years, the number of toy-related injures has increased 54%. In 2008, more than 235,000 children were treated at U.S. emergency rooms for toy-related injuries, and at least 19 children died. The causes of these injuries and deaths have included choking hazards from small detachable or easily broken parts; lead and cadmium contamination, particularly in children’s jewelry; toxic chemicals in candy; and a variety of additional dangers such as igniting batteries, broken straps, and exploding parts. Small, powerful magnets swallowed by young children present a particularly insidious danger. If multiple magnets are swallowed, they can attract each other through the intestinal walls pinching, blocking or eroding the intestinal wall resulting in infections, blood poisoning, and even death. The undermanned Consumer Products Safety Commission is only able to check a tiny fraction of the toys imported into this country every year. Many of the dangers in modern toys are either latent or intentionally concealed. Even careful parents need to know that profits, and not necessarily safety, are the first priority for a number of toy manufacturers.
The Alaska Personal Injury Law Group recently obtained a favorable ruling on a matter of great importance for aviation law in Alaska. Apparently reversing a prior contrary decision, the Federal District Court ruled that aviation wrongful death and personal injury claims cannot normally be transferred (“removed”) from Alaska State Courts to the Federal District Court at the request of the defendant.
The Alaska Personal Injury Law Group (APILG) has extensive experience in the area of aviation accident litigation. APILG Attorney Neil O’Donnell, representing Port Heiden resident Ted Matson, filed a wrongful death action for the loss of Mr. Matson’s wife in the crash of a Peninsula Airways (“PenAir”) Piper Saratoga near Port Heiden. The wrongful death action was filed in the Alaska Superior Court in Naknek, the court closest to Port Heiden and closest to the aircraft crash site. PenAir, however, transferred (“removed”) the case to the Federal District Court in Anchorage arguing that a recent Ninth Circuit decision, Montalvo v. Spirit Airlines, 508 F.3d 464 (9th Cir. 2007), made all aviation-related wrongful death and personal injury claims removable to federal court. The Federal District Court in Alaska had previously agreed with this argument in another aviation personal injury case (not handled by the Alaska Personal Injury Law Group) that had been removed from the Alaska Superior Court in Bethel. Alexie v. Hageland Aviation, Case No. 4:07-cv-0031-RRB.
The effect of the Alexie case would have been to allow any defendant to transfer any aviation-related death or injury claim out of the Alaska State Courts and into the Federal District Court in Anchorage, Fairbanks or Juneau. Plaintiffs in rural Alaska often want their cases heard in local state courts for both practical and strategic reasons. For example, local rural jurors appreciate the importance of lost subsistence services, often a major portion of a rural plaintiff’s economic damages. Juries in federal court must also reach a unanimous verdict. Since the plaintiff has the burden of proof, one or two “holdout” jurors can derail what would otherwise have been a persuasive and successful claim. In contrast, juries in Alaska State Courts can return a verdict based on the vote of only 10 of the 12 jurors.
The coming issue of Clinical Cancer Research will publish two case reports concerning the progression of prostate cancer believed to have been caused by a dietary supplement “spiked” with pharmaceutical compounds. “Spiking” is, unfortunately, an all too common practice in that industry. While claiming to sell “all natural” products, and taking advantage of the regulatory limitations imposed on the FDA under the Dietary Supplement Heath and Education Act (DSHEA), www.fda.gov/opacom/laws/dshea.html , diet supplement manufacturers put consumers at risk by “spiking” their products with pharmaceutical compounds they know to work, when the herbal compounds do not. Unlike prescription and over-the-counter drugs, current law does not require nutritional supplements to undergo pre-market testing or approval for safety and efficacy.
This was a key issue in the first jury verdict in the nation against an ephedra manufacturer, a case the Alaska Personal Injury Group brought: Talbert v. E’ola Products, Inc., www.cfsan.fda.gov/~dms/ds-ephed.html . There, the manufacturer, whose product has since been confiscated by the FDA, “spiked” its ephedra product with the pharmaceutical drug, ephedrine hydrochloride. www.fda.gov/bbs/topics/ANSWERS/2001/ANS01114.html . In that instance, it caused a healthy young woman to suffer a cerebellar stroke.
The product analyzed by the researchers at University of Texas Southwestern Medical Center has led to an equally horrific outcome–virulent prostate cancer. The researchers report in the journal that the diet supplement, which they have declined to identify by name, contained the sex hormones testosterone and estradiol. Laboratory tests of the product on human prostate cancer cells found it to be a more potent stimulator of cancer cell growth than testosterone alone. Such compounds cannot be sold except by prescription. The spiked hormones are believed to have caused the two men to develop rapidly advancing prostate cancer within months of using the dietary supplement. Both men, before using the product, had low levels of prostate-specific antigen (PSA), a signal for prostate cancer and then presented with widespread cancer within six months, which is unusual. One of the men has died; the other is in the final stages of the disease and is expected to die within months. Notified of these findings, the FDA sent a warning letter to the manufacturer, and the supplement has now been removed from the market.
In addition to failing to list all the steroid hormones contained in the product, the researchers also found that the product’s label stated ingredients that were not present, and it also misrepresented the concentrations of the ingredients present. These kinds of failings are very common in this industry, and arise because of the lack of regulation over the industry’s manufacturing processes. This type of misrepresentation and mislabeling is not just blatant consumer fraud, it can be dangerous when the concentration of an ingredient is too high.
On January 5, 2008, a Servant Air Piper Navajo Chieftain with 10 people aboard crashed shortly after take off from Kodiak, Alaska. The pilot and five passengers tragically died in the crash. Surviving passengers reported that a baggage door popped open shortly after takeoff and the pilot was attempting to return to the airport. The National Transportation Safety Bureau (NTSB) is investigating the crash. Based on recent NTSB investigations in Alaska, that may take awhile. I represented a family who lost a loved one in the crash of a PenAir Cessna Caravan 208 shortly after takeoff from the Dillingham airport on October 10, 2001. The pilot and nine passengers died in that crash. The NTSB did not release its probable cause determination until January 23, 2003 — 15 months after the crash. I am presently representing a family who lost a loved one in the crash of a PenAir Piper Saratoga PA-32 shortly after takeoff from the Pt. Heiden airport on December 14, 2006. The NTSB recently released its “factual report” on that accident just over one year after the crash. The NTSB has yet to make its probable cause determination. This illustrates why it is important for families to promptly hire counsel to independently investigate an accident and not to wait a year or more to see what the NTSB concludes about the accident. The families who have lost a loved one will typically not know what the NTSB has been up to for a year or more. In the meantime, important evidence may be lost and important witnesses may have disappeared.
The “tort reform” statute passed by the Alaska Legislature in 1997 continues to whittle away, automatically, year after year, at the real damages available to Alaska families who have lost a loved one due to a defendant’s negligent or reckless conduct. The 1997 legislation limited the amount of “non-economic damages” that can be recovered in a wrongful death action to $400,000, or $8,000 times the person’s life expectancy, whichever is greater. AS 09.17.010 These amounts have not changed since 1997. The United States Bureau of Labor Statistics states that someone would need $520,712 in today’s dollars to equal the purchasing power of $400,000 in 1997. Even when “tort reform” was passed in 1997, $400,000 was a modest amount for the death of a loved one. In real terms, the available damages decrease every year with the march of inflation. The $400,000 limit is also particularly harsh when the deceased did not have substantial economic earnings, such as a homemaker. Even assuming $400,000 was an appropriate limit when it was adopted in 1997, that amount should in fairness be updated by the current legislature to account for inflation and then indexed to the rate of future inflation. This limit also remains ripe for a constitutional challenge in court.
On Saturday, January 12, 2008, two Alaska Native leaders and their 16-year-old granddaughter were killed in a three-car collision on the Glenn Highway. Allan and Sophia Chase, and Melissa Pike were struck when a Chevrolet truck crossed the center line and sideswiped their vehicle, which caused their vehicle to hit a third vehicle driven by John Lavarnway. Lavarnway and his wife, Mary, were injured in the crash. The driver of the pickup, Joshua Swigart, and his passenger, Erin Guhl, were not injured. Troopers are investigating why the pickup crossed the center line, and no charges have yet been filed.
Allan Chase was a former board member of Cook Inlet Regional, Inc., an Alaska Native corporation based in Anchorage. Sophia Chase was on the board of Southcentral Foundation, a Native health organization affiliated with CIRI.
Source: Anchorage Daily News, January 13, 2008.