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Concussions are caused when the brain is jostled inside the head and normal function is disrupted. Among other symptoms, affected individuals may feel sick or disoriented or may lose consciousness. Depending on the severity of the impact and the constitution of the affected individual, concussions can be fatal absent proper treatment. By now the majority of the general public is probably aware that with participation in competitive sports comes the risk of concussion. That risk is only magnified when we are talking about younger athletes. Moreover, recognizing a concussion in a youth athlete is not a simple task. A concussion need not be accompanied by an open wound, nor does it require a particularly violent collision. Fortunately, more and more high school coaches and athletic trainers are being educated to the warning signs of a concussion. To that end, the CDC has recently released a free concussion “tool kit” for use by athletic coaches, trainers, parents, and even participants. The “tool kit” explains the symptoms one might expect to see from a concussed person. Above all, the “tool kit” advocates common sense caution. A concussed athlete cannot be allowed back on to a field of competition without being cleared by a medical professional. The old adage of “walk it off” simply does not apply where a concussion is suspected. We need look no further than our local high schools and youth leagues for tragic examples of what happens when the dangers presented by even minor concussions are not fully appreciated.

Labels: Brain injury Sports concussions Sports head injury

7/10/2009
Michael G. Phelan
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New Emergency Room Diagnosis Guidelines for Mild Traumatic Brain Injury

The American College of Emergency Room Physicians (ACEP) in collaboration with the Centers for Disease Control and Prevention (CDC) revised the clinical diagnosis guidelines for mild traumatic brain injury (MTBI). These guidelines are designed to improve patient outcomes for the more than one million people who visit emergency departments every year for mild traumatic brain injury.

"People with traumatic brain injuries may appear to be normal and their symptoms may be mild, but there can be hidden dangers," said Richard C. Hunt, MD, Director of the Division of Injury Response at the Centers for Disease Control and Prevention. "TBI's can also lead to significant, life-long impairments that prevent a person's ability to function both physically and mentally. These revised guidelines can help ensure that patients with even mild TBI's are identified early and receive the care they need."

The real incidence of traumatic brain injury (TBI) is unknown since many patients who sustain an injury never seek medical care. The majority of these injuries are classified as mild, meaning the patient is alert, oriented and functional when they are assessed in the emergency department. It is estimated that 10 percent of patients with a mild TBI have evidence of an intracranial injury on head computed tomography (CT), and that approximately one percent of patients with mild TBI harbor a life-threatening neurosurgical lesion. The challenge for the emergency physician is to identify which patients with a head injury have an acute traumatic intracranial injury, and which patients can be safely sent home.

ACEP and CDC recogize in the revised guidelines that MTBI results from direct trauma to the head or from an acceleration/deceleration stress to the brain, and that MTBI poses a risk for short-term difficulties with symptoms such as headache, difficulty with balance, thinking, concentrating and sleeping. Up to 80 percent of patients report some symptoms related to the injury at three months. If MTBI results in long-term problems, it is often referred to as post-concussive syndrome.

For more information on traumatic brain injury (TBI), visit CDC on the Web at: www.cdc.gov/Injury.

Labels: Acquired brain injury Acquired head injury Brain damage Brain injury Brain injury attorney Brain injury lawyer mild traumatic brain injury Traumatic brain injury

1/15/2009
Michael G. Phelan
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Cognitive Rehabilitation Helps People With Acquired Brain Injury

A meta-analysis published in the January issue of Neuropyschology provides evidence that cognitive rehabilitation after a serious brain injury or stroke can help the mind in much the same way that physical therapy helps the body. new meta-analysis. Because the data suggest that treatment may work best when tailored to age, injury, symptoms, and time since injury, the findings may help establish evidence-based treatment guidelines.

Researchers at the University of South Alabama and the University of North Carolina at Charlotte analyzed and updated the data found in systematic reviews of several hundred studies of cognitive rehabilitation. The researchers took those studies whose samples and methods were most amenable to rigorous statistical techniques and documented the extent to which various treatments improve the language, attention, memory and other cognitive problems that appear after acquired brain injury.

The meta-analysis examined 97 articles, comprising 115 studied treatment samples and 45 control samples. These samples collectively included 2,014 individuals who underwent cognitive rehabilitation after brain injury and 870 individuals in a variety of control conditions. The authors of the initial reviews had concluded there was enough evidence to generally support the use of a variety of rehabilitative treatments. To develop specific treatment guidelines, this new analysis documented the extent to which treatment type and timing, origin of the injury, recovery level, and participant age affected the odds of success.

Given the patterns they found, the authors offered initial treatment guidelines:

Generally, it is better to start treating patients as early as possible, rather than waiting for a more complete neurological recovery.
Even older patients (age 55 and up) may benefit from cognitive rehabilitation, particularly if the brain injury is due to stroke.
Clinicians should focus their efforts on direct cognitive skills training in specific cognitive domains (such as attention or visuospatial processing). More holistic, non-targeted interventions appear to be less effective.

Especially if they were treated soon after the event, language training helped older people after stroke with aphasia, problems producing and/or comprehending language. However, language training was still effective, just not as much, when it started more than a year after the stroke.

Attention training helped people with acquired brain injury and seemed to work best with younger patients less than a year after injury. It was the most specific treatment, improving nothing but attention.

Visuospatial training helped stroke patients with visuospatial neglect, the inability to respond or orient to something shown on the side opposite to the site of the injury. Visuospatial training also tended to improve performance in other cognitive domains.

Memory treatment did not produce clear results. Nor did comprehensive treatments that attempted to treat cognitive problems holistically.

The authors also found that patients treated less than a year after injury did better than those treated more than a year later.

There are some very talented experts in acquired brain damage and cognitive rehabilitation in Virginia. The challenge is to get the physicians who first treat victims of acquired brain damage (e.g., ER doctors, family doctors, and neurologists) to recogize the symptoms of TBI and timely refer the patient for cognitive rehabilitation.

Labels: Acquired brain injury Acquired head injury Brain damage Brain injury Brain injury attorney Brain injury lawyer Brain injury litigation Traumatic brain damage Traumatic brain injury Traumatic head injury Virginia brain injury attorney Virginia brain injury lawyer

12/8/2008
Michael G. Phelan
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Think Twice About Holding Your Cell Phone to Your Ear

Are we going to have to go back to the days of mounted car phones? A new study concludes that radiation from cell phones can affect the memory. At the Division of Neurosurgery, Lund University, in Sweden. Henrietta Nittby, researchers studied rats that were exposed to mobile phone radiation for two hours a week for more than a year. These rats had poorer results on a memory test than rats that had not been exposed to radiation.

The lead researchers believe that the findings indicate that microwave radiation from cell phones can affect the so-called blood-brain barrier. This is a barrier that protects the brain by preventing substances circulating in the blood from penetrating into the brain tissue and damaging nerve cells. The bottom line is the rats in the experiments suffered brain damage from the microwave radiation, and the brain damage caused memory problems.

The research team also found certain nerve damage in the form of damaged nerve cells in the cerebral cortex and in the hippocampus, the memory center of the brain. Moreover, they have discovered alterations in the activity of a large number of genes, not in individual genes but in groups that are functionally related.

Henrietta Nittby, one of the researchers, has cell phone herself, but never holds it to her ear, using hands-free equipment instead.

Labels: Acquired brain injury Brain damage Brain injury Brain injury attorney Brain injury lawyer Brain injury litigation Traumatic brain damage Traumatic brain injury Virginia brain injury attorney Virginia brain injury lawyer

11/26/2008
Michael G. Phelan
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Brain Injury Association of America Teams Up With Journal of Head Trauma Rehabilitation

The Brain Injury Association of America (BIAA) entered an agreement that designates the Journal of Head Trauma Rehabilitation (JHTR) as BIAA's official scholarly journal beginning January 1, 2009.

"As the nationwide voice of brain injury, our goal is to put timely, relevant research findings into the hands of brain injury clinicians and business leaders as well as policy makers and the media," said Susan Connors, BIAA President and CEO.

The partnership with LWW ensures that each new member of BIAA's Academy of Certified Brain Injury Specialists will receive a one-year subscription to the leading, peer-reviewed publication in brain injury. Renewing certificants will have an opportunity to subscribe to JHTR at discounted rates.

"JHTR has led the way in brain injury treatment research and practice for nearly 25 years," noted Sandra Kasko, JHTR Publisher. "JHTR is ranked #1 in rehabilitation by the Institute for Scientific Information's 2007 Journal Citation Report. LWW is pleased to partner with BIAA to provide this essential resource."

In concert with BIAA's adoption of JHTR, the Association will introduce the Mitch Rosenthal Memorial Lecture Series in 2009. The Rosenthal Lectures, delivered via teleconference and webinars, will be drawn from each issue's content.

John D. Corrigan, PhD, an editor of JHTR noted, "BIAA and JHTR are two of the nation's oldest, most respected names in the brain injury field. This partnership will extend the good work both organizations do to improve care for individuals with brain injury.

Founded in 1980, the Brain Injury Association of America is the premier source of information for victims of brain injury. BIAA and its nationwide network of state affiliates provide help, hope and healing to the millions of Americans who live with a lifelong disability as a result of brain injury, as well as their families and the researchers, clinicians and professionals who provide treatment and long-term care. For more information about brain injury or the BIAA, visit www.biausa.org.

Our local chapter, The Brain Injury Association of Virginia, Inc. (BIAV) can be contacted at www.biav.net or (804) 355-5748. For additional information concerning the medico-legal aspects of brain injury, visit www.injuryboard.com and click on the brain injury section.

Labels: Acquired brain injury Acquired head injury Brain damage Brain injury Brain injury attorney Brain injury lawyer Brain injury litigation Traumatic brain injury Traumatic head injury Virginia brain injury attorney Virginia brain injury lawyer

11/17/2008
Harris D. Butler, III
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12 Athletes Leaving Brains to Concussion Study

A dozen athletes, including six NFL players agreed to donate their brains to the Center for the Study of Traumatic Encephalopathy at Boston University's School of Medicine. The Center is devoted to studying the long-term effects of concussion. One player is former New England Patriot linebacker Ted Johnson, who said "...any doctor who doesn't connect concussions with long-term effects should be ashamed of themselves." Ted Johnson's story is the subject of a blog I did on another site. He suffered multiple concussions from 2002 through 2005 which resulted in permanent degenerative brain damage with memory, depression, and suicidal ideation.

Last Tuesday, the Center announced that a deceased NFL player, the former Houston Oilers linebacker, John Grimsley, was found to have brain damage commonly associated with boxers. John Grimsley died in February at age 45 after he shot himself in the chest. Analysis of his brain confirmed the presence of damage that had begun to affect Mr. Grimsley's behavior and memory. Mr. Grimsley's widow said Grimsley sustained about nine concussions in his nine NFL seasons. For the last four to five years of his life (i.e., beginning at 40 years of age), Grimsley suffered irritability and severe short-term memory problems. The Center has now examined the brains of six deceased NFL players. Grimsley's brain was the fifth found to have chronic traumatic encephalopathy, joining former Eagles defensive back Andre Waters (who was depressed and committed suicide), former Steeler iron man Mike Webser (who died alone and homeless at the bottom of a canyon), and formers Steelers Terry Long (who died in a bizarre car crash in which he drove head on into an oncoming 18 wheeler) and Justin Strzelczyk. Interestingly, chronic traumatic encephalopathy does not show up on a brain MRI, CT or other radiologic study, but can only be confirmed by post-mortem tissue analysis. Each of these athletes died at young ages. The brain damage seen in the tissue analysis of their brains is exceedingly rare in people of that age without a history of repetitive brain injury. The tissue analysis further proves that serious brain damage may not be detected by MRI or CT.

Among the living athletes with histories of concussions who agreed to donate their brains for tissue analysis after their deaths are Ted Johnson and former Tennessee Titan tight end Frank Wycheck. As John Grimsley's widow said, "Even though he's gone, he'll still be helping people." Kudos to all of these athletes for donating their brains in order to advance the understanding of this serious problem.

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11/17/2008
Michael G. Phelan
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Tackling Head Injuries Head-on

As student athletes continue to get bigger, faster, and stronger, the incidence of sports-related traumatic brain damage is on the rise. Sports medicine has come a long way in the past 20 years in the treatment and tracking of sports concussions. In the early 1990's, a doctoral candidate at the University of Georgia, Martin Mrazik, worked on the first simple experiments to measure the impact of concussions. Mrazik theorized that if one could measure the athletes' baseline cognitive function before the start of the season, before they suffered a concussion, then one could measure what happens after an athlete suffered a head injury. Mrazik developed written tests of reaction time and processing speed.

A few years later, researchers at the University of Pittsburgh Medical Center computerized Mrazik's crude test, creating the Immediate Post Concussion Assessment and Cognitive Test (ImPACT) system. In the past couple of years, the National Hockey Association, the National Football League, and U.S. Lacrosse (which reports that concussion is the third most prevalent injury among its male and female athletes) adopted ImPACT as an assessment tool. This year, the Canadian Football League followed suit. The goal of ImPACT is to properly diagnose concussion and then to make sure the athlete does not return to action until he or she is fully recovered.

Today, Dr. Mrazik is a professor at the University of Alberta, which applies ImPACT to all of its football, hockey, rugby, and soccer players. Dr. Mrazik is not satisfied. He worries about the lower school and recreational athletes who do not have the benefit of health care professionals who are trained to diagnose and treat brain damage. Mrazik cites the example of Brett Lindros, the younger brother of former Philadelphia Flyers star, Eric Lindros, who was forced to retire from hockey at age 19 because of repeated concussions suffered in junior hockey.

This problem is not limited to junior hockey. Every day in this country, middle school and high school football players return to practice within a day or two of suffering serious, and often serial, concussions. There is no way the school coaching staffs are properly trained in spotting and managing concussions. ImPACT needs to become standard practice in U.S. colleges, high schools, and middle schools.

Labels: Managing concussion Sports concussions Sports head injury Traumatic brain damage Traumatic brain injury Traumatic head injury

Car and Truck Accidents

4/20/2009
Michael G. Phelan
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Excluding State Farm's Hired Gun

Retired orthopedic surgeon, Robert O. Gordon, M.D., State Farm's long-time hired gun in Maryland, D.C., and Northern Virginia, is apparently retiring to Williamsburg and doing record reviews and defense medical examinations in cases throughout Virginia. Dr. Gordon follows the same playbook in every case, and it goes something like this:
First, Dr. Gordon plays biomechanical engineer and tries to say either the forces from the collision were not sufficient to cause injury and/or the seat back did not break, therefore, the plaintiff could not be injured. He divines the force of the collision from photographs and will testify that one cannot sustain a low back injury in a motor vehicle crash unless the seat back breaks. Second, Dr. Gordon testifies that, if the plaintiff was injured in the crash, she suffered soft tissue muscle strains. He testifies that even severe strains heal within six weeks. Third, Dr. Gordon testifies that any complaints of pain beyond the magic six week cut-off have a functional component, i.e., the plaintiff is either malingering or has a psychological problem that makes her prone to believing she is hurt when she is not. Dr. Gordon refuses to opine whether the plaintiff is lying/faking or crazy, but he supports his either/or speculation by repeating hearsay from the plaintiff's medical records. Any reference to prior depression, anxiety, or use of anti-depressants will be cited by Dr. Gordon to support his insinuations.

In my opinion, the entire Gordon playbook is inadmissible. This series of blogs will discuss how one might go about excluding Dr. Gordon's testimony.

Labels: M.D. motor vehicle crash Robert O. Gordon

4/20/2009
Michael G. Phelan
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Excluding Dr. Gordon: Part 2

Dr. Gordon's biomechanical opinion testimony is inadmissible under Tittsworth v. Robinson, 252 Va. 151 (1996). In Tittsworth, the Virginia Supreme Court held that the type of testimony that Dr. Gordon attempts to give in every case is unreliable as a matter of law. A biomechanical expert determined the force of a crash by reviewing photographs of the crash vehicles, assuming each vehicle sustained the same measure of crush damage, and applying a computer analysis which he had not created. A physician then opined that the force calculated by the biomechanical engineer was not sufficient to cause the injuries complained of by the plaintiff in the case. The Court noted that the experts never examined the actual vehicles, did not know if there was undercarriage, frame, or other hidden damage, made assumptions about crush damage, and failed to show that the crash tests relied upon to create the computer program were similar to the conditions in the crash in question. The Court rejected the junk science as being speculative, founded on assumptions that had an insufficient factual basis, and failing to consider all the variables that bear upon the inferences to be deduced from the facts. There is no doubt that a retired orthopedic surgeon should not be permitted to testify in any court in Virginia that he can look at vehicle photographs and determine whether the crash produced forces sufficient to cause bodily injury. This opinion needs to be knocked out in limine.

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4/20/2009
Michael G. Phelan
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Excluding Dr. Gordon: Part 3

Dr. Gordon categorizes most injuries as soft tissue injuries, and has testified for many years that such injuries heal within six weeks. I believe this opinion is inadmissible for two reasons. First, a true summary of the grounds for such opinion is typically not provided in defendant's Rule 4:1 (b) (4) (A) (i) expert disclosure. Such disclosure will typically list by provider the medical records that Dr. Gordon reviewed. This is a false summary because Dr. Gordon's opinion that all soft tissue injuries heal within six weeks was reached long before he reviewed the plaintiff's records. The defect in most disclosures of Dr. Gordon's opinions is they fail to provide a summary of the grounds for the magic six week opinion.

When pressed by counsel to disclose the grounds for the six week opinion, Dr. Gordon has testified for at least 15 years that he bases this opinion on what he's always told his hip replacement patients and upon studies that he vaguely recalls reading long ago. He may drop the name, "Mayo Clinic" for good measure. In John Crane, Inc. v. Jones, 374 Va. 581 (2007), the Virginia Supreme Court made it clear that Rule 4:1 places the burden on the disclosing party to provide the grounds for the expert's opinion. Requiring plaintiff's counsel to search for the phantom studies cited by Dr. Gordon would shift the burden to the non-disclosing party, an approach the Court explicity rejected in John Crane. Dr. Gordon should be excluded based upon the insufficiency of the expert disclosure. Even if the trial court grants leave for defendant to sufficiently set forth the grounds for Dr. Gordon's opinions, the supplemental disclosure is likely to be limited to the records reviewed. Part 3 of this series discusses the recent Virginia Supreme Court decision, Wynn v. Commonwealth, which prevents Dr. Gordon from repeating ANY hearsay from the plaintiff's records.

The second reason the magic six week opinion is inadmissible is that it violates the rule against applying general principles or averages to an individual in the absence of foundation evidence that would place the individual within the alleged "average" range. In Keesee v. Donigan, 259 Va. 157 (2000), an accident reconstructionist opined that all drivers require an average of 1.5 seconds to perceive and then react to a hazard in the road. The expert then attempted to apply this so-called industry standard average to the individual defendant. The Court held that, in the absence of foundation evidence plaicing the defendant within the "average," the expert's testimony was inadmissible.

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4/20/2009
Michael G. Phelan
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Excuding Dr. Gordon: Part 4

As discussed in Part 1 of this series, the final chapter in Dr. Gordon's playbook is to insinuate that complaints of pain beyond the magic six weeks have a functional component. This means that either the plaintiff is malingering (i.e.,lying or faking for secondary gain) or she has a psychological defect (e.g., history of depression or a personality prone to hypochondria, etc.) which makes her think she is hurt when she is not. This line of testimony is usually accompanied by ad hominem attacks on plaintiff's treating physicians for either overtreating for monetary gain or being incompetent. This "functional component" opinion is rarely disclosed (and therefore is inadmissible under Rule 4:1) because Dr. Gordon is well- rehearsed at either slipping it in as a response to a general, unobjectionable question by defense counsel or unleashing it on the cross-examiner who dares to challenge his opinions.

He is fond of bolstering this opinion with references to studies he's never been able to cite, such as the study that allegedly found that people who injure their low backs gardening see a doctor on average 2-3 times, while people who injure their low backs in car crashes go to the doctor on average 17 times and complain of pain until their case settles. Again, unless these imaginary studies were disclosed, the opinion should not come in. See Rule 4:1 and John Crane, supra.

More importantly, these opinions are inadmissible as a matter of law because they invade the province of the jury. An expert witness may not express an opinion as to the veracity or credibility of a witness "because such testimony improperly invades the province of the jury to determine the reliability of the witness." Fitzgerald v. Commonwealth, 223 Va. 615, 630 (1982), and Pritchett v. Commonwealth, 263 Va. 182, 187 (2002). Insinuating that a plaintiff is either a liar, faker, or crazy person is a blatant attempt to impugn the plaintiff's veracity. Dr. Gordon's habit of attacking the actions of plaintiff's treating doctors is likewise objectionable. In Brown v. Corbin, 244 Va. 528 (1992), an accident reconstructionist testified he could not determine vehicle speed or the actual path of the vehicle because the investigating Deputy Sheriff (a witness in the case) failed to obtain the necessary information about tire marks etc. when he investigated the accident. The Court held that this testimony amounted to an attack on the Deputy's credibility and invaded the province of the jury.

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4/20/2009
Michael G. Phelan
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Excluding Dr. Gordon: Part 5

The final part of this series focuses on preventing Dr. Gordon from regurgitating at trial every salacious fact he can dig up from the plaintiff's medical, employment, educational, and other records. He is particularly fond of following up his "functional component" opinion with a list of all references in the records to depression, anxiety, illicity drug use, prescriptions for anti-depressants, anti-anxiety medications, or any other reference to psychological or psychiatric issues. He, of course, is typically doing this in cases where the plaintiff's mental health is not even in issue. Dr. Gordon feels free to put her mental health in issue.

Counsel must slam shut the door on Dr. Gordon's efforts to interject inadmissilbe hearsay into the trial. On January 16, 2009, the Virginia Supreme court clarified that hearsay matters of opinion and fact are to be treated the same. In Wynn v. Commonwealth, 277 Va. 92, 99-101 (2009), the Court ruled that inadmissible hearsay does not become admissible simply because it is a hearsay matter of fact routinely relied upon by experts in the field. The Court reasoned that no litigant should be required to contend with hearsay information from her medical records because the jury cannot observe the demeanor of the speaker and the statements cannot be tested by cross-examination. Id. at 100.

Many Virginia trial courts allowed defense counsel and their experts to repeat hearsay from the plaintiff's medical records as long as they deemed the hearsay to not be hearsay matters of opinion. Counsel should bring the Wynn decision to the trial judge's attention long before Dr. Gordon testifies.

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1/21/2009
Michael G. Phelan
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Richmond, Va. Ranked Among Ten Deadliest Cities for Teen Auto Crashes

On December 29, 2008, Allstate Insurance Company released study results identifying the ten deadliest hotsots for teen drivers on New Year's Eve and New Year's Day. The study focused on the 50 largest metropolitan areas and retrospectively reviewed data from the past eight years. The deadliest hotspots for fatal automobile crashes involving teen drivers over the New Year's holiday are:

Jacksonville, Fla.

Columbus, Ohio

Richmond, Va.

Birmingham, Ala.

Orlando

Phoenix

Las Vegas

Philadelphia

Sacramento, Calif.

St. Louis

According to the Insurance Institute for Highway Safety, car crashes are the number one killer of American teenagers, causing more than 5,000 teen deaths every year. Teen drivers lack experience behind the wheel. This lack of experience combined with drinking at a New Year's party, texting or talking on the cell phone while driving, or both is often fatal.

Butler Williams is a proud sponsor of MADD Virginia. Parents of teens should contact MADD to learn more about educating teen drivers about the danger of drinking and driving.

Labels: Drunk driving Fatal automobile crash Fatal car crash Teen drivers

11/17/2008
Zev H. Antell
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Virginia Amends Statute to Require Pre-litigation Disclosure Of Policy Limits In Context Of Motor Vehicle Accidents

In 2008, Subsection C was added to Va. Code. § 8.01-417. The addition deals with motor vehicle accidents and the responsibilities of insurers. It represents a significant shift. Insurers are now required to inform injured motorists of applicable policy limits upon written request.

The Subsection allows an injured person or their attorney to make a written request for policy information, specifically policy limits, prior to filing their personal injury suit. In order to make such a request, the injured party must first disclose pertinent information relating to the accident. In addition to the accident’s factual details, such information includes medical bills, medical records, and wage loss information. Provided the injured party has complied with the statute and has suffered wage losses and/or medical bills of a combined $12,500.00, the insurer “shall disclose” the policy limits.

The Subsection does not presume that an insurer’s compelled disclosure of policy limits means the insurer has conceded the “alleged injury or damage is subject to the policy.” Moreover, policy information learned as a result of Va. Code. 8.01-417(C) is inadmissible at trial.

Labels: Motor vehicle accidents

Complex Commercial Litigation

8/26/2009
Charles L. Williams
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Light Pole Failures At Athletic Fields Create Potential Legal Problems

Large light poles line the athletic fields of many American parks and schools. Without light poles the term "night game" would not exist. However, within the last few years many light poles manufactured by one company in particular seem to have shown signs of compromise and in some cases have failed altogether. The danger posed is evident. A light pole is huge and heavy structure. They can be as high as 100 feet or more and are constructed from heavy steel weighing tons. When one of these behemoths crashes to the earth below, it is easy to envision the potential for extensive damage to property and person.

The risk of a light pole failing should be minimal. Reasonable steps should be taken throughout the design, fabrication, and installation process to ensure that light poles remain safe and usable for the duration of their expected service life. However, according to an April 26^th article in the Austin American Statesmen, at least with respect one former light pole manufacturer, it appears there may have been a breakdown in the design process. Per the article, light poles manufactured early this decade by a single, now bankrupt, company have been falling or at least cracking at an alarming rate. The root cause of the problem appears to have been a flawed calculation used to design the poles.

The article does not speak to any current lawsuits and instead points out that because the company is bankrupt, property owners have been forced to shoulder replacement and remediation costs. Nevertheless, the liability which could result from a catastrophic failure of a light pole is not difficult to see. Depending on how and when a light pole fails designers, manufacturers, suppliers, installer, owners, and insurers could all potentially find themselves defending a lawsuit.

Labels: Construction Defect Construction Litigation

2/11/2009
Michael G. Phelan
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Another Richmond Company Files for Bankruptcy

Like so many other towns and cities across the nation, the Richmond area has been hard hit by the weakened economy. Several Richmond corporate institutions have fallen prey to the softened business environment. Companies like Land America and Circuit City who once employed thousands of Richmonders have sought bankruptcy protection or have been forced to liquidate and disappear entirely. Unfortunately, this week we learned of yet another national company headquartered in Richmond which has been now forced to file for bankruptcy. National discount men’s clothier S&K has filed for Chapter 11 protection.

As the economy tightens and credit becomes more and more difficult to come by, a natural by-product will be difficulties for certain brands. According to February 9^th Richmond Times Dispatch article, whether or not S&K owes its current predicament to its own failings or simple bad luck, remains uncertain. What appears more certain is that the company looks to need substantial operational changes in order to be profitable. Still more obvious is that the majority of the company’s creditors will now have to proceed before the federal bankruptcy court in Richmond if they hope to recoup monies owed them.

Labels: Commercial litigation

1/7/2009
Zev H. Antell
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Renovation Cannot Come Quickly Enough for Richmond Landmark

Like so many other urban areas across the country, Richmond, Virginia’s downtown has seen something of renaissance in recent years. The economic slowdown notwithstanding, numerous old buildings in and around the city center have been renovated and repurposed into retail space, offices, and high end apartments and condominiums. One property that seems a perfect fit for revitalization is the old Hotel John Marshall . Built in 1929, the John Marshall was once a grand luxury hotel, but those days have since passed. In 1988, the hotel closed for over ten years and was reopened in a limited capacity in 1999. The building has been largely vacant since the hotel finally shut its doors in 2004.

In the last few years several different developers have unveiled plans for redevelopment, but construction has yet to begin. For a myriad of reasons these projects have failed to get off the ground and the building remains essentially unused. It seems there may now be an additional impetus to get the property back in use; decay. As reported on by the Richmond Times-Dispatch, on December 30-31 several massive limestone panels fell off the façade of the building crashing over 100 feet to the ground and structures below. Fortunately, no one was hurt and the authorities acted promptly to make sure the public stayed out of danger. The incident highlights the need for development of the property and others like it. We all recognize that when buildings go unattended and are allowed to fall into disrepair, surrounding property values decline. However, an often overlooked risk is the danger of a major accident due to decay. Crumbling buildings present both a danger to the public and a potential source of liability to an owner.

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11/17/2008
Zev H. Antell
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With Rough Economy Comes Increase In Construction Litigation

As the credit markets tighten and the economy seemingly grinds to a halt, a corresponding uptick in construction litigation has resulted. For the first half of this decade ambitious builders and developers experienced something of a golden age. While large scale construction inevitably leads to disagreement and disputes, during this “boom” period those involved understood that delaying a project due to litigation worked to no one’s benefit. Now, however, as those involved with a project face an uncertain future, we find that construction disputes more and more often make it all the way court.

In the past, parties to a construction lawsuit could typically assume a settlement would be reached prior to trial, but the economic downturn has drastically altered the equation. When the prospect of settlement no longer represents a realistic or profitable option, litigation necessarily emerges. A recent article published in the Virginia Lawyers Weekly describes several construction lawsuit scenarios which in the past would likely have settled. Such situations include;

-Defective Construction

-Construction Delays

-Foreclosure

Certainly, there are other reasons for a construction lawsuit, especially breach of contract for nonpayment. However, that type of suit might find its way into court even under the best economic conditions.

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11/17/2008
Michael G. Phelan
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Non-Solicitation Agreement During Merger Talks May Be Useless

When firms enter into merger discussions, the smaller firm may wish to protect itself with a non-solicitation agreement to prevent the larger firm from using the merger negotiation as a pretext for poaching members of the smaller firm. In a case arising from a failed law firm merger, a New York judge ruled last week that non-solicitation agreements, though common, are unenforceable because they restrict the right of lawyers to work where they want. Judge Kenneth Fisher ruled that a non-solicitation agreement entered into in 2007 between legal behemouth, Nixon Peabody and a smaller law firm, Taylor Wessing, was unenforceable. The two firms agreed not to hire from each other for two years. After the merger negotiations collapsed, Nixon Peabody hired a dozen Taylor Wessing partners.

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11/17/2008
Michael G. Phelan
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Legal Fees: Billable Hours is Not the Only Option

At Butler Williams & Skilling, we recognize that our entrepreneurial clients are looking for a law firm that is willing to share some of the risks of commercial litigation. Indeed, our willingness to handle a commercial litigation matter on a contigent fee, fixed fee, or blended contingent/hourly fee basis often affords the best opportunity to our clients to have their dispute litigated by a top-notch law firm. According to the Washington Post, the current economic crisis is causing businesses, in-house counsel, and individuals to demand the same alternatives to the old billable hour structure for legal fees, including for commercial litigation matters.

Corporate legal department officials say fees to outside law firms have risen faster than energy costs, salaries and other expenditures. Hourly billing has been the subject of criticism by clients and debates by legal experts, who say they give lawyers incentive to work inefficiently. Most law firms have been slow to embrace alternative billing.

The current crisis may force those firms to change.

New efforts to jettison hourly billing are being driven by in-house corporate lawyers, who say they have grown frustrated seeing fees to outside firms soar even as they slash their own costs. They said they want more certainty in their legal budgets and worry that outside firms are spending unnecessary amounts of time on their matters.

In a recent survey conducted by the Arlington-based Corporate Executive Board, a for-profit organization that does research on best practices, 800 in-house lawyers said they spent 50 percent more last year on large outside law firms than in 2002. They said the hourly rates they paid jumped 70 percent between 1996 and 2005. Those increases obviously cannot continue in the current market.

The Association of Corporate Counsel, which represents 23,000 in-house corporate lawyers, last month launched the "Value Challenge," an initiative aimed at spurring corporate lawyers and outside law firms to develop alternative pricing plans, including fixed rates, volume discounts and lower hourly rates blended with performance bonuses or a contingency fee component.

Most people who purchase a service want to know, "how much is this going to cost?" In the past, the answer from those selling a legal service has been "x dollars an hour for how ever many hours we work on your case, regardless of whether the result is favorable to you." This paradigm is no longer acceptable to many clients. They would prefer their lawyer to either quote a fixed rate or take some of the risk, when appropriate, by taking as their fee a percentage of the recovery.

Labels: Alternative legal fees Blended legal fees Commercial litigation Contingent commercial litigation Fixed rate commercial litigation Legal fees

Employment Law

10/7/2009
Zev H. Antell
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Senate Votes to Ban Forced Arbitration of Sexual Assault and Discrimination Claims Against Military Contractors.

On October 6^th, the United States Senate overwhelmingly passed the “Franken Amendment” to a bill dealing with funding of American military contractors. According to a recent article from a minnpost.com. the amendment, named after Minnesota's junior Senator, serves to prohibit military contractors from requiring forced arbitration of sexual assault and discrimination claims. The need for the amendment was made evident by the case of former Halliburton contractor, Jamie Leigh Jones. While working for Halliburton in Iraq, Ms. Jones claims to have suffered an unspeakable assault by several male coworkers. Over the course of a single day, she contends she was drugged, raped, and then locked in a shipping container. Ms. Jones sought to hold her alleged attackers and Halliburton civilly liable, but due an arbitration provision in her contract, Halliburton was intially able to prevent her case from reaching court. After several years of litigation, only very recently did the Federal Courts side with Ms. Jones and allow her case to proceed within the court system. The amendment will serve to prevent defense contractors from even attempting to compel arbitration of sexual assault and discrimination cases because it cuts off funding to any contractor who continues to employ the provisions.

Arbitration provisions have become more and more popular in recent years. The rational behind arbitration is that it makes the litigation process more streamlined and efficient. To a certain extent, arbitration has some appeal provided that the parties knowingly enter into the agreement and the process for adjudication is a fair one. Unfortunately, in the employment context, the provisions are often signed under unfair circumstances and tend to make it a more difficult road for a complaining employee.

Labels: Forced arbitration; Sex discrimination; Sexual assault

8/28/2009
Zev H. Antell
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$22.75 Million Overtime Settlement

According to an August 20th press release, a massive national Uniform provider, Cintas, came to terms recently on an almost $23 million settlement with a class of hundreds delivery drivers to whom it failed to pay overtime compensation.

The Fair Labor Standards Act (“FLSA”) is the Federal law mandating overtime compensation to persons who work more than forty hours a week. The law has a number of carve outs, more properly called exemptions, for broad groups of employees who are not entitled to overtime. The lawsuit alleged that Cintas misclassified the drivers as exempt employees under the FLSA. After an arbitrator ruled in favor of the drivers, the parties agreed to settle the matter for the above amount.

Many misconceptions exist about who is and is not entitled to overtime. For example, just because a person receives a salary does not mean they are exempt from overtime. Another mistaken belief is that “managers” cannot be entitled to overtime. The truth is that salary and title have little to do with the analysis. The law is far more concerned with an employee’s actual duties and responsibilities than anything else.

Labels: Fair Labor Standards Act overtime Virginia overtime lawyer

8/13/2009
Zev H. Antell
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Race Discrimination Class Action Lawsuit Wins Key Ruling on Certification at Fourth Circuit Court of Appeals.

The generally conservative Fourth Circuit Court of Appeals recently issued a ruling effectively granting class action status to a racial discrimination lawsuit originating out of South Carolina. The case involves alleged racial discrimination at a Nucor Steel plant. The Plaintiffs in the case claim, among other things, that African Americans were improperly denied promotions. They further allege that far more blatant incidents of racism took place at the plant as well. For example, the Plaintiffs contend that paraphernalia exhibiting the Confederate flag was available at the plant gift shop and that certain Caucasian employees openly used racial epithets while on the job.

Class status means that not only the named plaintiffs can be a party to a suit and that the interests of many, many affected people can be represented all at once. In this case, class status had been denied at the lower court level and was appealed to the Fourth Circuit. There, it was ultimately determined that the District Court Judge abused his discretion in refusing to certify the class.

The decision in Brown v. Nucor was just published on August 7, 2009 and can be found at Brown v. Nucor Corp., 2009 U.S. App. LEXIS 17643. For a number of reasons, the opinion may be significant. For starters, it gives a clear roadmap on when and how a race class can win certification in the Fourth Circuit. Secondly, the opinion may signal a shift in how the Fourth Circuit Court of Appeals will treat similar cases going forward.

It is important to recognize that while this opinion marks a clear and decisive victory for the Plaintiffs, it says little about the merits of the case itself. The Court did not pass judgment on any facts or liability; it merely allowed the case to proceed as a class action. In laymen’s terms, the Plaintiffs won a big battle, but they have not yet won the war. It remains to be seen what happens next. Nevertheless, the precedential value of the Court’s opinion is undeniable as it will almost certainly play a prominent role in future discrimination actions where class status is sought.

Labels: Race Discrimination Racial Discrimination Virginia employment lawyer

7/24/2009
Michael G. Phelan
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Wal-Mart Settles Wage and Hour Lawsuit

According to a recent Seattle Times article, Wal-Mart is set to pay current and former employees in Washington State $35,000,000.00 to settle claims that they were forced to work "off the clock” and/or skip required rest periods. Per the article, Wal-Mart faced as many as 63 U.S. lawsuits all alleging violations of wage and hour laws and the Washington settlement is part of their $640,000,000.00 plan to resolve that litigation.

Recovery for the Washington litigants looks to be limited to around $950.00 at the high end so it is not a great deal of money for each individual claimant, however at larger companies like Wal-Mart it would be unlikely that a pay practice would only apply to just a few employees. For example, the article puts the total number of owed employees in Washington State alone at 88,000. In suits like this, often called collective actions, the general maxim of strength in numbers absolutely holds true.

Wage and hour laws can be violated in any number of ways. Employees who are forced to skip rest periods, employees who are not paid overtime, and employees who are forced to work “off the clock” all may have recourse against their employers under federal and state law. With regard overtime, many are under the misconception that just because they are paid a salary or because they are paid by commission that they cannot be entitled to overtime when in fact the opposite is true. Eligibility for overtime has nothing to do with job title or pay practice and relies far more heavily on job duties.

Labels: collective action Employment Lawyer Fair Labor Standards Act FLSA overtime unpaid overtime wages Wage and Hour Division

4/27/2009
Harris D. Butler
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Are Timeshare Sales Employees Entitled to Overtime Pay?

Under a Department of Labor Wage and Hour Division Opinion Letter dated January 25, 2007, on-property timeshare salespeople are entitled to overtime wages for all hours worked over 40 hours per week. The DOL Opinion Letter states that timeshare employees enaged in sales efforts on the employer's property and performing associated duties should be considered performing "inside sales" work and that such employees are entitled to overtime pay.

The timeshare industry has historically treated this work as "outside sales" (which would be exempt from overtime) and timeshare employers have not paid sales employees overtime. The issue applies to all on-property employees performing timeshare sales functions, including "front-line" sales, "in-house" sales, "take-over" sales/TO managers, "closers" and "exit department" sales, all of which may qualify for overtime payments depending on the circumstances of each case. Timeshare salespeople have often worked over 40 hours per week without overtime pay. Because the work is performed on the employer's property, the Opinion Letter states that the type of activity described in the Letter should be considered "inside sales" and that employees performing such work are entitled to overtime - they are not "exempt" employees under the Fair Labor Standards Act (FLSA), the law which governs overtime pay.

The FLSA requires that employers who have not paid on-property timeshare sales employees overtime for all hours worked over 40 per week must pay their employees and former employees (1) their unpaid overtime; (2) liquidated damages equal to an additional like amount of unpaid overtime for two years from the date of filing a suit or an "opt-in" consent to join an existing suit (i.e. doubling the amount due) and (3) attorneys fees and costs of court. In the cases of willful violations, employers are required to pay unpaid overtime and liquidated damages for three years unpaid overtime.

Butler, Williams & Skilling, P.C. and Cupp & Cupp, P.C. presently represent a collective of approximately 145 timeshare sales employees for unpaid overtime pay and minimum wages against Massanutten Resort (owned by Great Eastern Resort Corporation and affiliated with and managed by The Berkley Group, Inc. family of resorts) in a claim pending in the Virginia state court in Rockingham County (Harrisonburg, Virginia).