This blog will examine the crucial differences between a CT and MRI, the difference between lawyers who practice personal injury and lawyers who know it and the unfortunate trend of insurance companies to turn ignorance into denial.

All too often, Florida insurance companies want to fight whether you had a permanent injury.  The entire PIP (Personal Injury Protection) insurance industry is contingent on using these negative findings against you.  These insurance companies save money by wrongfully turning the lack of findings on a particular report or doctor’s snap decision on a medical record into an opinion that nothing (or very little) is wrong with you.  This used to be the exception to the rule.  Now, it is the beginning of their negotiation process- low ball.

I recently had an argument with an insurance adjuster -who had no medical training- about just what a CT was.  He insisted it was just like or synonymous with a MRI.  He insisted they were harmless procedures.  He insisted they were foolproof.  He was wrong on all three accounts.

CT’s are increasingly common in hospitals because they are cheap, simple and great profit centers.  They sometimes protect doctors from the malpractice of a missed diagnosis.  They are often negative of any findings of new injury, meaning no injury was seen.  We often see ignorant adjusters and insurance lawyers waive these “negative” results around as if injury never happened. We often see lawyers who wouldn’t know the first thing about neurology argue they handle personal injury cases and take “no” for an answer. It’s unfortunate.  With this article you may know more than many adjusters and some self-proclaimed “personal injury” lawyers on either side of the aisle.

CT, or computerized tomography, use a series of X-rays taken from many angles to provide cross-sectional images of the inside of the body.  Over 60 million CT scans are performed in the USA each year, about 10% of them in children, according to the American College of Radiology.  They are linked to greater life expectancy, lower mortality rates and reduced hospitalizations, particularly when findings are “positive.” They are fairly commonly used to rule out or rule in head injuries, as they can provide stunningly detailed images from inside of a brain.

But they aren’t without risk.  CT scans typically deliver about 70 times the radiation of normal X-rays.  CT scans deliver ionizing radiation to the area being scanned and to nearby tissues, potentially damaging DNA.  Doctors predict these tests therefore can cause cancer later in life, particularly in children.  Yet, insurance adjusters will argue that these are “harmless.”

In fact, by you even going to the hospital and exposing yourself to a CT to rule out injury, you are therefore subjecting yourself to cancer causing agents I am sure that adjuster would object to if apart of his or her job. I can’t blame adjusters that much though, as even doctors fail to point this out.  A recent study showed that only 35% of 271 patients surveyed at the Denver Veterans Affairs Medical Center had discussed the potential risks of a CT scan with their doctor before having the test.  Yet, we commonly let jurors know- this was a risk, an inconvenience our clients endured, which the Defendants wants to downplay.

And they aren’t without limitation.  Most injuries in car wrecks involve injury to the discs, ligaments and other “soft tissues” of the body.  Soft-tissue details in areas such as the brain, internal pelvic organs, and joints (such as knees and shoulders) can often be better evaluated with MRI. When it comes to brains, it really depends on the information the doctor seeks.  For the most part, CT’s are done to quickly determine if something is obviously wrong, while an MRI will use more precision (at a greater cost of time and money).  As such, CT’s are hardly “foolproof,” often inconclusive and simply determine information quickly.

I rarely order or seek CT scans from clients unless it is a case I need that specific technology.  I frequently use and have even learned to interpret MRI’s.  As I sometimes joke with my clients, “I am not a doctor, but I may pretend to be one in my conference room.”  My conference room, without question, has more anatomical models than most lawyers in the United States.  It helps my clients understand what is wrong with them and why the insurance company might be misinformed. Can you guess which is which? The MRI is on the left.

Compared to the CT, MRIs give you similar, but more detailed information.  They cost more, take longer, and there are restrictions (such as metal in the body) that makes MRI’s impractical or impossible.  Most importantly, MRI stands for magnetic resonance imaging, which doesn’t use radiation but instead uses a magnetic field and pulses of radio waves to make pictures of organs, bones and blood vessels.

The point is- I have spent almost a decade working for these insurance companies and 5 years working for injury victims.  You need a lawyer dedicated to personal injury and the understanding of bio-mechanical and biomedical forces. You need an advocate who is perfectly happy explaining to an insurance adjuster why they are wrong and why we will “show our math” is far more advanced than they understand.

Part legal call-in show, part sports talk show, John combines his passions for sports and courts into a brand new radio show on ESPN affiliate, Sports & Courts.  It is available on 1010 in and around Jacksonville, Florida, as well as on 1010xl.com and on the 1010xl iPhone application.

Please give it time to download and then click play to the left.  We will soon update this process.  Specific Interviews are also located below.

We ask the rhetorical question- If the Alabama Crimson Tide and the Jacksonville Jaguars faced off, who would win?  And delve into the recruiting of Jacksonville’s front office, as Jacksonville has only 2 SEC Players despite being in SEC Country and needing to put butts in seats.  The NFL average is 8 on roster, and some teams have as many as 12-14 oftentimes.

The government is introducing a new television and radio ad campaign called “Drive Sober or Get Pulled Over.” The campaign, running in major media markets, replaces “Drunk Driving. Over the Limit. Under Arrest.”  You may have seen it, the new TV advertising features “invisible” law enforcement officers observing alcohol-impaired individuals before apprehending them when they attempt to drive their vehicles. The new theme is scheduled to run over the next five years.

“While we have made great strides in reducing drunk driving over the years, tragically, drunk driving remains one of the leading causes of death and injury on America’s roads,” said Transportation Secretary Ray LaHood.

In a study released today, NHTSA said the highest risk of being involved in a fatal crash with a drunken driver occurs between midnight and 3 a.m. Among nearly 11,000 people killed in a crash involving a drunken driver in 2009, one out of four occurred during those hours, the agency said.

From 2008 to 2009, traffic deaths across the country fell 9.7 percent, while alcohol-related traffic deaths dropped 7.4 percent to 10,839, according to NHTSA.

Coinciding with the advertising push, states are mounting stepped-up enforcement efforts.

“Law enforcement officers across the country are out in force, cracking down on anyone who breaks the law and drives drunk,” said NHTSA Administrator David Strickland. “If you’ve had too much to drink, don’t even think about getting behind the wheel. You may not see them, but they will see you. Don’t risk it.”

Targeting drivers in the final weeks of summer, through the Labor Day holiday weekend, the annual crackdown snares thousands of drunken drivers.

The efforts nationwide involve more than 10,000 police departments and other law enforcement agencies, who will be redoubling efforts during this high-risk travel period to ensure impaired drivers are detected and arrested.

We pride ourself in representing and fighting for DUI Victims and DWI Victims in these cases and seeking all damage, including punitive (or punishing) damages against the drunk drivers.

John M. Phillips
Law Office of John Phillips
www.knowthelawyer.com
jmp@knowthelawyer.com

Much of this article was excerpted from The Detroit News:http://detnews.com/article/20110829/METRO05/108290312/NHTSA-revamps-effort-to-curb-drunken-driving#ixzz1ZxZcGL00

There are 5 to 10 things every person can do to protect themselves from trouble down the road.  Most people talk to a lawyer when it is simply too late.  The attorney is cleaning up messes, which inevitably will take longer (and cost more) than if simple steps were taken to prevent the mess in the first place.  Act now.  Save money and stress.  Resolve to make a few adjustments in 2012.

 I. Get a Living Will / Medical Directive

It’s called many things- a living will, a durable power of attorney for healthcare decisions or a medical directive.  Each arrives at the same end- to have a document tell doctors and your family your wishes when you cannot.

Any one over 18 should have a living will or medical directive. They are fairly simple.  Is it an uncomfortable topic, yes, but it is very important because when it is too late, well, it is too late.  If you do not get the Medical Directive taken care of and have an incapacitating head injury or cannot communicate, your family will be spending thousands to have a guardianship to make even the most simple decisions for you.

It is simple- some want their life prolonged by any means necessary; some want medical treatments withheld, allowing for a natural death.  Which are you?  Who do you trust to enforce this decision?  Who can hire a lawyer for you and make simple decisions while you are incapacitated?  Those are the basic questions of a living will or medical directive.  People simply need to have someone in charge to handle important decisions if you cannot.

Other topics to consider, in advance, are:  Who is to make long-term decisions in case of dementia, unconsciousness or some sort of brain injury?  What types of life-sustaining treatment do you want or do not want, such as artificial nutrition and hydration, surgical procedures, and cardiopulmonary resuscitation (CPR) and under what conditions.  Who is to be the primary contact for extended family and in primary control of information and decision-making?  Do you have organ donation preferences?  Do you have pain control preferences? Who has control of financial assets and decisions during your lifetime, if you are unable to make those decisions?

We will happily prepare these for you for minimal cost.  In January, we will be preparing these, for free, to all at an upcoming event.  We always offer these, for free, to past or existing clients.  Otherwise, cost is between $200-$500 and will save $1000’s down the road.  For more information, email help@knowthelawyer.com.

II.  Get a Last Will & Testament

A last will and testament is fundamental, even if your “estate” is small or you have very little.

A Will allows you to direct the distribution of assets, designate a guardian for any minor children, and appoint a representative who will manage and safeguard your property for your beneficiaries.  Trusting the state or the laws of simple succession -the default rules for those without a will- to make these decisions is unwise.  It can often lead to confusion, additional costs and stress in a time when grief is at its peak.

Again, an ounce of prevention on the front end will prevent much more time, money and stress on the back-end if an estate has to be probated, wishes are unknown and the like.

III.  Review your Uninsured / Underinsured Motorist Insurance

If you drive, you need uninsured / underinsured motorist coverage or UM / UIM (hereinafter called “UM).  I cannot tell you how many times people tell me they have “full coverage,” and I look at their policy and there is no UM.  Even more often, the “full coverage” they think they have isn’t much over state minimum amounts.

What is UM/UIM?  It is insurance that provides coverage for the insured who is hit by a motorist who does not have insurance, by a hit-and-run driver who remains unidentified, or when the persondoes not carry enough insurance to cover your losses.

For instance, Bob carries a minimum insurance policy of $10,000 and gets into an accident with Sally.  It’s Bob’s fault.  Sally breaks her leg in the collision and needs a $25,000 surgery.  Sally can only recover $10,000 from Bob’s insurance and Bob doesn’t have any money in the bank.  Sally has lost time from work, has pain and suffering and is $15,000 in the hole after surgery.  UM/UIM makes up the difference.

We recommend carrying UM/UIM insurance of at least triple the household gross income.  Anything less than $50,000 in this day and age is risky because of medical costs.  A simple back surgery can cost $40,000 – $100,000 or more.  I have had cases where a limb was lost or brain injuries occurred or family members died and there was only $10,000 to $25,000 in insurance and life is devastated.  UM/UIM is in your control.  It is also fairly inexpensive.

We will look at your policy for free and advise you what you need.  Often for as little as $25-$50 per month, one can be covered and protect themselves against major losses. Email us a copy of your policy and we will advise you, for free, about whether you carry enough insurance- help@knowthelawyer.com.

IV.  Review Your Homeowners / Renters Insurance

Homeowners and Renters Insurance are wise.  There is a misconception that these only cover property damage or theft of property.  Untrue.  They also cover your personal liability if you injure someone or someone is injured on your property.

Generally, dog bites or home defects, injuries caused by roughhousing kids or tree limbs falling on things are also covered losses.  Homeowners Insurance is required in most instances of homeownership and can be pricey, but renters insurance is often neglected despite being very cheap.

Policies are often $50-$200 per month.  We are happy to advise you, for free on insurance issues-help@knowthelawyer.com.

V.  Incorporate Your Business

If you have your own business, are self-employed or operate as an independent contractor, you should strongly consider incorporating that business to put up a wall between you and your business.

Running a sole proprietorship, where there is no formality, is simple, but it exposes you and your family to certain personal financial exposure.  Creditors and people you may even accidentally wrong can come after you and your family’s assets- personally.  A corporation puts up a barrier and creates a separate stand-alone entity out of the business such that if things turn bad, the business is exposed and not you.  It costs less than $500 in most instances.

VI. Best Criminal Advice- Never Volunteer Information

It is hard to give “blanket” advice in the context of what to do when faced with criminal charges.  However, in most situations, unless there is clear error or mistake that can be easily cleared up, when facing a criminal investigation or arrest, do not try to talk your way out of trouble.  Politely, ask if you are being investigated, charged or arrested for a crime.  If so, ask to speak to a lawyer immediately.

You may not be entitled, but that statement should be recorded, often on video or audio recordings and shows you as a prudent person desirous of protecting your rights.  Remain silent.  Do not consent to search of person or property and contact a lawyer as soon as possible.  Obviously, these matters are determined by the nature of the crime, but all too often people try to outsmart the system and make matters worse.  Everything you do or say is potential evidence against you.

Call a lawyer immediately.  John’s 1-800 number rings to his cell phone night or evenings and he answers e-mail right away.  He always finds time to answer quick questions to help people know what to do.  An ounce of prevention is better than a pound of cure.  Email me 24/7- help@knowthelawyer.com.

VII.  Never Ignore Legal Papers

This is fairly obvious, but do not ignore any legal papers or service of process. The service of legal papers means that someone is involving a Court of law or equity and you are required to respond to, or at least be aware of, a legal matter.  The service of legal papers could simply be a subpoena, which is a legal paper requiring you to appear at a designated time and place, usually at a court reporter’s office, the court or an attorney’s office to answer questions about a legal matter.  Failure to respond can result in criminal and civil trouble, including fines and jail time.  If it is a lawsuit, you could be defaulted and lose simply because you did not respond and lose vital rights, money or property.  Say nothing, read and respond as requested and save everything,

Call a lawyer immediately.  John’s 1-800 number rings to his cell phone night or evenings and he answers e-mail right away.  He always finds time to answer quick questions to help people know what to do.  An ounce of prevention is better than a pound of cure.  Email John anytime- help@knowthelawyer.com.

VIII.  Research your lawyer

Lawyer and medical referrals are billion dollar businesses nationally.  Law schools are churning out lawyers at a frightening pace and the competition has created a diluted pool of talent and far more aggression and “cut corners” than ever before.  There are over 70 lawyer/doctor referral services in Florida, alone, because billing of PIP insurance benefits is huge business.  Clinics are being raided daily and insurance carriers are filing fraud charges regularly.

Lawyer ratings services, such as Martindale, have been around since the 1800’s overseeing lawyers, with lawyers and judges rating other lawyers.  There are others, but many have some advertising or referral motive.  Look for experience and someone who you can have a personal relationship with.  Avoid those that take on too much or fail to return calls.  Some are just “ad campaigns” that feature lawyers that say the right things, but haven’t been to a court in years.  Credentials matter.  Returned calls matter more.  Don’t settle for being treated like that.

Questions? Email John 24/7- help@knowthelawyer.com.

IX.  Rethink What You Say on Social Media

Be careful on Social Media.  Past and future employers are looking. Employees could be at risk of losing their job.  In most states, employment is “at will.”  That means there is no written employment contract and the employer has the right to terminate an employee with or without cause as long as there’s no discriminatory motive and/or public policy issue.  Many employees are finding their posting habits, even unrelated to their job, causing them to be laid off or terminated.

Further, if a post is considered offensive or detrimental towards the employer, its business or business relationships (clients, employees, competitors etc.), the employee may open up further legal action against them.  It sounds crazy, but it happens all of the time that someone posts something “just” for their friends and it winds up viral or in the hands of the wrong person.

Believe it or not, there have been many people arrested simply because of posts on Facebook.  One man was arrested for posting animals he killed out of hunting season.  It happens.  Use common sense.

What you say online can and will be used against you in Court.  Online social networks are public forums, and once information is in the public domain, it can be used against you in a court of law. Even if you delegate it as “private,” it is owned by the site and can be seen by a Court if necessary.  Once information is posted online, it’s recorded forever and available for retrieval 20, 30, 40 years down the road and can later be used in a court of law where relevant.

1. •For example, let’s say a case arises where a witness’ credibility is at issue and a person denies that he or she has ever taken drugs. An online search finds a post made by that person years earlier that contradicts their denial of ever having taken drugs, that post could destroy a litigant’s credibility and ultimately be the deciding factor in who wins or loses a case.

X.  Protect your identity
Protect your identity.  Identity theft is the new bank robbery.  A crook can be in any country, slip in, exploit your credit and financial worth and slip out in many instances leaving little physical evidence behind.

There are two issues here- prevention and response.  To prevent identity theft or your accounts from being tampered with or stolen, the primary advice is simply to make sure you keep all of the pieces of the transaction in your possession or make sure they are properly destroyed- credit card, receipts and bank statements included.  Be careful with passwords and change them at least every year to words that are not obvious.  Keep a close eye on all monthly credit card statements.  If something looks awry, contact the financial institution and, if necessary, contact the three major credit reporting companies – Experian 888-397-3742, Trans Union 800-680-7289 and Equifax 800-525-6285 and annually get a copy of your credit report.  Close any account that you suspect has been victimized and report the theft to the police once the back has acknowledged it.  It’s all stuff you have heard a thousand times, but we never think it will happen to us… until it does.

Have a wonderful and safe New Year from all of us at the Law Office of John M. Phillips.

John M. Phillips
Law Office of John Phillips
www.knowthelawyer.com
jmp@knowthelawyer.com

It wasn’t the initial rule in the United States.  In fact, quite the contrary is true.  America was founded on the concept of government accountability to citizens.  Governmental Immunity was adopted when Justice Oliver Wendell Holmes declared in 1907, “A sovereign is exempt from suit [because] there can be no legal right as against the authority that makes the law on which the right depends.”  Because it makes the law it is not subject to it- sound fair?

A 1945 Supreme Court opinion declared that sovereign immunity is “embodied in the Constitution.” However, neither law professors, nor private citizens victimized by the government have ever been able to find precisely where in the Constitution this doctrine is “embodied.”  Even the basic principle’s espoused in Marbury v. Madison in 1803, held, “the very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.”

Yet, States are enacting more and more restrictive laws. For instance, the Nevada Legislature has created a limited waiver of sovereign immunity.  The limitation is that there is cap of $50,000.00 per person for claims against any governmental entity. Governments are NOT accountable with such low caps.

How Does This Affect Us Here In Florida?

Let’s take Volusia County, Florida as an example. Six women have been run over by lifeguards.  Lifeguards- the very people hire to protect them.  And about twelve women have been run over in the State.  Yet, little policy or law changes.  If this were a corporation –a commercial business- the company would be subject to civil, criminal and administrative scrutiny as has drug manufacturers, car manufacturers, drug manufacturers and food manufacturers each time a recall, class action or governmental administrative agency looks its way.

Pursuant to Florida’s Sovereign Immunity Statute § 768.28, the State of Florida and its political subdivisions, such as cities and counties, has limited its liability for damages under the sovereign immunity statute such that an injured consumer may recover up to a maximum amount of damages of $200,000, and potentially another $100,000 if there are dependants. That’s it. It was just raised on October 1, 2011 from $100,000 and $200,000 respectively.

If you have suffered catastrophic personal injury in Florida due to a negligence or carelessness of any State, County, or city worker, and further, even if your medical bills alone exceed $200,000, the most you can recover from the State, County, or City responsible is $200,000 and possibly another $100,000 for your dependents.

Florida’s sovereign immunity restriction applies to almost every case of negligence filed against the State or any of its Counties or Cities, including:

* Car wreck caused by County employee causing injuries;

* Public hospital malpractice;

* Defective or dangerous city-owned property causing injuries.

If your injuries are truly catastrophic, and if your story is compelling, then there is one last method to obtain justice. It is called a “claims bill.”  In order to obtain damages against the State entity in an amount above the $200,000 cap, then you must pursue a special law through the Florida Legislature. Your lawyer can coordinate the lobbyists, sponsors, committee votes, House and Senate passage, and eventually the Governor’s signature (or lack of votes and signature – it is at the government’s discretion) to make this remote possibility your reality. Further attorney’s fees are limited to 25%, so many elite attorneys won’t take the case or fight the fight.

Unfair indeed.

We are fighting this fight.

Municipal Liability/Sovereign Immunity

At least 33 states’ acts limit, or “cap,” the monetary amount for damages that may be recovered from judgments against the state, and at least 29 states (often in combination with a cap) prohibit a judgment against the state from including punitive or exemplary damages.

The table below lists statutes and constitutional provisions for all 50 states and the District of Columbia relating to immunity and tort claims against the state, including:

• Constitutional provisions that establish legislative authority over sovereign immunity or tort claims issues
• Statutes and constitutional provisions relating generally to sovereign immunity or tort claims against state governmental entities
• Discretionary function exceptions to state liability1
• Misrepresentation exceptions to state liability2
• Prohibitions on punitive or exemplary damages against the state
• Monetary limitations (“caps”) on damages against the state per occurrence, per person and/or per cause of action

ALABAMA

Limited – Sovereign immunity has not been waived but a Board of Adjustments determines claims against the state and all of its subdivisions.

Recovery of damages against government limited to $100,000 for injury or death to an individual and $300,000 aggregate per occurrence.

ALASKA

Claims against State may be pursued in state court. Follows Federal Tort Claims Act.

ARIZONA

In Stone v. Arizona Highway Commission, 93 Ariz. 384, 381 P.2d 107 (1963), the Arizona Supreme Court abolished the doctrine of sovereign immunity in Arizona, but there still are some hurdles.

ARKANSAS

Sovereign immunity applies except that political subdivisions of state are required to maintain liability insurance or self-insurance for motor vehicles.

CALIFORNIA

SOL: 6 months. Runs from date of notice of claim is served on entity. Doctrine of sovereign immunity abrogated.

COLORADO

6 Month SOL to give notice to municipality after discovery of injury.

CONNECTICUT

2 Years (with a 90 day notice requirement) for defective roads and bridges and 2 yrs (with a 6 month notice requirement) for actions against municipality for negligence of most employees. However, under CGS7-308, there is a one year SOL for cases involving the negligence of municipal firemen (paid or volunteer), and volunteer ambulance workers (with a 6 month notice requirement).

DELAWARE

Waived but only for actions in state court and only when claim is covered by state insurance program.

DISTRICT OF COLUMBIA

Action against the District of Columbia requires notice in writing to mayor within 6 months of injury, or police report.

FLORIDA

Waived only when employee is acting within scope and not acting in bad faith. Allowed only up to limit of insurance coverage. Requires prior written notice within 3 years of incident, must have notice in writing after injury to municipality and department of insurance. Lawsuit can be started after claim is denied. State, or subdivision thereof waives sovereign immunity up to $100,000 per person and $200,000 per incident or occurrence.

GEORGIA

1 Year

HAWAII

2 Years

IDAHO

2 Years from date or discovery. 180 days to file claim against municipalities. Infants have 120 days after majority or 6 years from injury or discovery.

ILLINOIS

1 Year ,including Wrongful Death. State has adopted an immunity statute governing when actions against the state or its political subdivisions are permitted. In certain municipal actions, notices of claim are required.

INDIANA

Immunity available to government entities in some limited situations. Notice required for claims against state and local governments.

IOWA

2 Years for claims against state, requires written notice to State Appeal Board within those 2 years.

KANSAS

Abolished. State liable for damages caused by negligent or wrongful act or omission of government employee acting within scope of employment. Certain immunities remain. Medical malpractice for municipalities same as for private defendant. Government damage capped at $500,000 unless insurance for greater amount. No punitive damages against municipalities.

KENTUCKY

year SOL. Partially waived. Notice must be given to Board of Claims within 1 year of injury. Damages permitted up to $200,000 per individual and $350,000 per claim.

LOUISIANA

No immunity for state, state agency from suit and liability in contract or injury to person or property. Although special statutes do exist to limit liability and create structured payment plans. Max awards of $500,000 except as to medical care and loss of earnings.

MAINE

2 Years Infant has 2 years from injury and minor has 2 years from reaching majority. Notice of claim to be filed within 180 days unless claimant is a minor in which case it is 180 days from reaching majority.

MARYLAND

Limited waiver of state’s sovereign immunity in tort claims to extent of insurance coverage.

MASSACHUSETTS

3 Years years for most municipal acts. Waived, but limited by statute depending on situation. Public departments and agencies, other than certain authorities and other independent agencies. Remedy does not extend to punitive damages or any damages in excess of $100,000 per plaintiff or to prejudgment interest. Small claims against housing authorities must be brought within 3 years.

MICHIGAN

Only waived by express statutory consent. State may be sued in accidents involving motor vehicles, aircraft, defective highways, maintenance of public buildings, and in some medical malpractice situations.

MINNESOTA

Abolished, but numerous special rules apply.

MISSISSIPPI

Partially waived and limited to $500,000. No punitive damages permitted against municipalities.

MISSOURI

Doctrine exists, however, suits permitted for compensatory damages for injuries caused by negligent acts of public employees in operation of motor vehicles, and other specific negligent acts.

MONTANA

Abolished.

NEBRASKA

2 Years for actions against state. Claim must be filed within 2 years with State Claims Board; action must be filed within 6 months of final disposition by Board.

NEVADA

Waived unless otherwise provided by statute. Capped at $50,000.

NEW HAMPSHIRE

years

NEW JERSEY

Public entity is generally subject to tort liability for acts or omissions of the entity or public employees acting within scope of employment. However, some exceptions still exist.

NEW MEXICO

Limited by statute.

NEW YORK

Require notice of claim within 90 days of occurrence and commencement of suit within 1 year and 90 days of occurrence. Other Notice of Claim provisions apply to different political subdivisions and actions against the State may only be brought in the Court of Claims where a judge alone (no jury).

NORTH CAROLINA

2 Years unless statute states otherwise.

NORTH DAKOTA

3 Years after occurrence. 180 days to make claim against State, 1 year for death claims. Limited by statute. Requires written notice to office of management and budget.

OHIO

Actions: 180 days from denial of claim. Claim must be presented within 1 year of occurrence.

OKLAHOMA

Actions: 180 days from denial of claim. Claim must be presented within 1 year of occurrence.

OREGON

Damages limited to $50,000 for property damage, $100,000 for claims arising out of a single occurrence, and over $500,000 for any number of claims arising out of a single occurrence.

PENNSYLVANIA

Reinstated by statute with 9 specific exceptions and with maximum damage awards.

PUERTO RICO

Waived with monetary exceptions.

RHODE ISLAND

3 Years If arising out of maintenance of streets, highways, or bridges, 60 day notice of claim requirement.

SOUTH CAROLINA

If notice of claim filed, SOL is 3 years. If no notice of claim filed, SOL is 2 years with discovery rule. State liable for torts, same as private individual, with some limitations and exemptions, however. No punitive or exemplary damages or interest prior to judgment may be recovered.

SOUTH DAKOTA

Subject to statutory exceptions. State and counties, cities and townships, and school districts are not liable for damages for neglectful conduct. Officer or employee of state acting within scope of employment is immune from liability. To extent, however, of liability insurance covering state, or any other public entity, sovereign immunity deemed waived.

TENNESSEE

Abolished for governmental entities in tort cases.

TEXAS

Waived, but notice required within 6 months of occurrence.

U.S. VIRGIN ISLANDS

Limited. Sovereign Immunity waived with respect to injury or loss of property or personal injury or death caused by wrongful act or omission of government employee while acting within scope of his employment. $25,000 maximum recovery.

UTAH

2 Years for actions against state or municipalities.

VERMONT

State liable for certain injuries to same extent as private individuals however, numerous monetary limits apply.

VIRGINIA

Cities and towns can be sued but require the filing of a notice of claim within 6 months of the occurrence giving rise to the action. The notice requirement is tolled for incapacities until the plaintiff is able to give notice.

WASHINGTON

Doctrine abolished but numerous statutes apply with respect to special rules

WEST VIRGINIA

Not waived but held inapplicable to municipalities, counties, and board of education and state with liability insurance. Damages recoverable up to amount of insurance.

WISCONSIN

State retains sovereign immunity, except as provided by statute. Claims against municipalities permitted but governed by statutes with respect to types of cases and amounts of recovery.

WYOMING

Granted except for wrongful death, personal or property injuries, and certain cases of neglect however, numerous other restrictions apply.

They then use these millions of dollars to hire lawyers for sometimes less than $100 per hour to fight claims and drag out the litigation process to make it take years and make cases not go to trial all in an effort to save a few more thousand dollars per wreck. Add it up and it is why you see so many State Farm, Allstate & GEICO commercials. It is HUGE business. Then they lobby and make the word “tort reform” a household word despite few understanding it. Everyone is against lawsuits until serious injury happens to them or a loved one. And then, people can find themselves repeatedly victimized- victimized by the at fault person or company, then victimized by the insurance company, then victimized by the insurance company’s lawyers, and maybe victimized by your own lawyer who overcharges fees and offers little.
Here is the market share an number of policies written in Texas alone- http://www.tdi.texas.gov/company/top40.html
1. The Fast Settlement – You’ve been in some sort of event- auto accident, fall, have taken a recalled prescription drug, or have otherwise been injured. You may not know the results yet. It may go away or it may get worse over time. The quicker you settle, the better it is for the insurance companies. Some injury victims get offered fast settlements because companies know they can make even greater profits by not paying what’s rightfully due to an injured victim such as paying for permanent impairment of a body part, permanent disability, or paying for future medical expenses or loss of future income as a result of an accident. They get you to sign a release as soon as possible to lock you into a settlement before you even see a lawyer or a doctor. I have heard of this done even days after a wreck when the adjuster comes to look at your property damage. It is just as bad as the “ambulance chasers.” Before you settle your case, you want to make sure you know the full extent and future effects of your injury. Give it a few weeks to let the swelling and symptoms show.
2. Fear Factor – Some insurance representatives talk injured victims into taking a quick settlement, because the insurance adjuster convinces them that sprain and strain symptoms are not recoverable or that what you have is “probably temporary,” that it would be too expensive to hire a lawyer, that you’d get less if you hire a lawyer because they take a fee, that you may wind up owing money if you do not take the settlement, or otherwise intimidate or use their years of experience to convince you that you need to resolve it now. The fact is a good lawyer can help you get the medical attention you need and document your claim to make sure you are getting fair compensation for your injury. Also, a good lawyer can negotiate reduction on medical treatment and save you money on some of your bills.
Even simple whiplash can result in permanent injury as the soft tissues of the body can be stretched or torn, leaving scar tissue when they heal. It will reduce range of motion and sometimes cause permanent pain and other issues as your body adjusts to the new alignment. Let’s let the doctors decide what is wrong- not an insurance adjuster.
3. Sign Your Life Away – Accident victims can get so confused about what they’re signing, such that the injured victim signs away his/her rights to a fair settlement. That’s why you must read the “fine” print. You should consult with an attorney before you sign anything. There are occasions when even a “policy limits” settlement is not all that one can get and an attorney should evaluate it and make sure. An attorney should also be fair to you and not take a fee on what was previously offered without his/her help.
4. Lie: Your insurance premium will go up or be canceled – It’s a common threat and absolutely FALSE. If you were not substantially at fault, premiums should not be increased and policies should be renewed. See Florida Statute 626.9541. An insurance company’s violation of this statute may subject it to a civil lawsuit and government fines for engaging in an unfair and deceptive act. Further consumer protection is afforded by Florida Statute 626.9702, which provides: (1) No insurer shall impose or request an additional premium for automobile insurance, or refuse to renew a policy, solely because the insured or applicant was convicted of one or more traffic violations which do not involve an accident or do not cause revocation or suspension of the driving privileges of the insured, without adequate proof of a direct, demonstrable, objective relationship between the violation for which the surcharge was imposed and the increased risk of highway accidents. (2) No insurer shall cancel or otherwise terminate any automobile insurance contract with an insured after the insured has paid the premiums on such policy for 5 years or more solely because the insured is involved in a single traffic accident. Call us immediately if an insurer says your insurance will go up or may be canceled because you need to make a PIP or Bodily Injury claim.
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Be smart if you are in a collision and/or harmed by the negligence, ignorance, and/or omissions of others. Don’t think some insurance adjuster for the at fault party is going to believe you or is doing you a favor or is giving you good advice. They don’t care. It’s business.
John Phillips
Law Office of John M. Phillips
904-517-8903

Was This Image Doctored?

Has It Gone Too Far?

As a trial lawyer, my job is to tell a story- my client’s story. I gather evidence like chapters in a book from experts, doctors, friends, medical records, photographs and other sources to produce that story. I used to not be able to “PICK” my clients. Now I do. I pick cases I believe in and it often shows during the process and especially at trial.

I wanted to force myself out of the box a little and tell the stories of George Zimmerman and Trayvon Martin and draw my own conclusion and looked at 100’s of articles, reviewed interviews, 911 calls and much more.  Here are their stories.  My conclusion is at the end.

Trayvon Martin’s SideTrayvon Martin was a 17-year-old high school junior from Miami Gardens and the son of divorced parents.  He grew up in working-class neighborhoods north of Miami’s downtown. He and his father, a truck driver, were active in the Miramar Optimist Club, an organization that runs sports and academic programs for young people. Tracy Martin, the teen’s father, coached his son’s football team. Martin was tall and lanky — only 140 pounds and his nickname was “Slimm.” The boy was a swift athlete, according to a friend, and played a range of positions up to about age 14. After he stopped playing, he remained active in the organization, volunteering six days a week from June through November of 2011 to help run the team’s concession stand.  Martin cooked hamburgers, hot dogs and chicken wings alongside his father at the stand. He loved talking to the kids, asking them what position they played and whether they were good.  He would call the mothers “Ma’am,” and if they had a stroller or an item they needed help with, Martin stepped in.”  Everyone out there loved him,” Horton said. The teen spent a big part of his week living with his father in a one-story, peach-colored home. Neighbor Fred Collins, Jr., said he would see Trayvon Martin outside every week mowing the lawn and trimming the trees. The teen also helped Collins’ son learn how to ride a bike. “He was coaching him, giving him words of advice, encouragement,” Collins said.Tracy Martin often recounted how his son saved his life. The elder Martin had begun heating up some oil to fry fish and fell asleep. The grease caught fire, and when Tracy Martin awoke and tried to put out the flames, he spilled the oil on his legs, severely burning himself. Trayvon Martin pulled his father out of the home and called 911. He was influenced, like other teenagers, into assimilating into the rap culture and found some minor trouble.  It was the third time Trayvon Martin was disciplined at school, so this time his parents sent him to a quiet, racially mixed gated community in Sanford with his dad to get his priorities straight.   Like most teens, he spent an inordinate amount of time on the phone. On that Sunday, he talked for nearly five hours, mostly with his girlfriend. On February 26, 2012- On February 26, 2012, he went to seven-eleven for a snack.  It was getting dark and rainy in Sanford, Florida as 17-year old Trayvon Martin hurried back to his dad’s girlfriend’s home.  He was carrying a bag of Skittles and a can of Arizona iced tea.  He was in a hurry to reclaim his seat in front of the TV to watch the NBA All-Star game, slated to begin in just minutes, at 7:30 p.m. Unbeknownst to Trayvon, Zimmerman made racially charged comments to the 911 dispatcher and chased his target based on a stereotype that plagued the neighborhood.  He did not wait for police by the mailboxes or give the police time to handle it.  He was angry and wanted to bust another person he had already tried and convicted in his own mind.  Zimmerman acknowledged he planned to keep looking for the teen instead of simply waiting for a patrol car.  Zimmerman, who possessed a concealed carry permit, was breaking every major rule of being in a neighborhood watch that night.  He was armed.  He was making his presence known to the person he was following.  He was mis- and pre-judging “suspicious” activity.  He pursued his target. He confronted his target. Trayvon noticed a man staring at him and talking about him on the phone.  Was he paranoid?  Maybe.  Then, the man got out of a car, some 200 yards away and began to pursue him.  This confirmed it to be real.  A T-Mobile phone log provided by the family’s attorney shows Trayvon’s girlfriend called him again at 7:12 p.m., just moments after having hung up with him. “I think this dude is following me,” Trayvon told her, according to her account.  The girl says she offered Trayvon advice: “Run!”  He took a 9-millimeter bullet to the chest at close range. George Zimmerman was questioned by a narcotics (not homicide) officer and was released.  Zimmerman claimed it was self defense. Calls came in to 911- Selma Mora Lamilla heard no fighting, only what she says was the wail of a child and the distinct crack of gunfire that silenced it. She ran outside her back porch, where she said she saw Zimmerman standing above Trayvon, apparently holding him down.  “I asked him, “What’s happening here? What’s going on?” Mora said. “The third time, I was indignant, and he said, ‘Just call the police.’ Then I saw him with his hands over his head in the universal sign of: ‘Oh man, I messed up.’ ” Trayvon was dead. Problem child? “There’s no way I can believe that, because he’s not a confrontational kid,” said Jerome Horton, who was one of Martin’s former football coaches and knew him since he was about 5. “It just wouldn’t happen. That’s just not that kid.” Martin dreamed of becoming a pilot. He had flown on school vacations to various places around the country with his mother, skiing in Colorado one year, going off to Texas another. “There’s no little black kids that want to be pilots,” Horton joked with him when he was about 13. “Well, I’ll be the first one,” the teen replied. Friends said Martin liked rap music and funny movies. He had written some lyrics, though he hadn’t had a chance yet to perform them. Martin was especially a fan of a student musical group at his school called Bison. He had two of the group’s pins on his backpack and helped spread the word about shows. The Fort Lauderdale funeral director who handled the arrangement for Trayvon’s family has told reporters that he saw no bruises or blood on the teen’s knuckles. At the wrong place at the wrong time, he was murdered by an overzealous neighborhood watchman. Aftermath- Zimmerman was handcuffed and placed in the back of a patrol car. Sanford Fire Rescue administered first aid.  Zimmerman was taken to the Sanford police department in handcuffs. A time stamp on the precinct security camera video shows Zimmerman got to the police station at 7:52 p.m. An officer patted him down at that time.  The video shows no obvious sign of injury or blood stains on his clothes, although one shot shows an officer examining the back of Zimmerman’s head, then wiping his hands on his uniform pants.  Zimmerman was questioned by police and released without charges. The Real Zimmerman- According to an anonymous account from someone who worked with George Zimmerman between 2002 and 2005,  Zimmerman worked at two different agencies providing security to house parties.  “Usually he was just a cool guy. He liked to drink and hang with the women like the rest of us,” the alleged former co-worker said, “But it was like Jekyll and Hyde. When the dude snapped, he snapped.” He said Zimmerman was fired after a particularly violent incident:  “He had a temper and he became a liability. One time this woman was acting a little out of control. She was drunk. George lost his cool and totally overreacted,” he said. “It was weird, because he was such a cool guy, but he got all nuts. He picked her up and threw her. It was pure rage. She twisted her ankle. Everyone was flipping out.” In 2005, Zimmerman, then 20, was arrested and charged with “resisting officer with violence” and “battery of law enforcement officer,” both which are third-degree felonies. The charge was reduced to “resisting officer without violence” and then waived when he entered an alcohol education program. Contemporaneous accounts indicate he shoved an officer who was questioning a friend for alleged underage drinking at an Orange County bar. In August 2005, Zimmerman’s ex-fiancee, Veronica Zuazo, filed a civil motion for a restraining order alleging domestic violence. Zimmerman counterfiled for a restraining order against Zuazo. The competing claims were resolved with both restraining orders being granted.  Zuazo claimed that she saw Zimmerman, her ex, driving near her home in August 2005. She called him and he said “he was just checking up” on her. After they spoke for an hour at her home, Zuazo claimed she asked him to leave. He grew upset, snatching her cellphone away from her, pushing her, she said. A pushing match ensued and her dog jumped up and bit him on the cheek.  Zimmerman contrarily claimed she initiated a battle, slapped, clawed and tried to choke him.

George Zimmerman’s SideGeorge Zimmerman is the son of retired Supreme Court Magistrate Judge Robert J. Zimmerman and Gladys Zimmerman, a court clerk. He has grown up around the Courts and legal system. Zimmerman is, or until recently was, an employee at the Maitland office of Digital Risk, LLC, a mortgage risk-management firm. George Zimmerman has seen his gated townhome community become a rough place to live since the housing market went south. Foreclosures plagued the areas and, with it, an increase in crime was noticed by all. The people at the Retreat at Twin Lakes have had missing bikes, grills stolen and a few times thought strangers were casing their townhomes. When the homeowners association wanted to start a neighborhood watch, only one man stepped up: George Zimmerman. The neighborhood has been estimated at 50% minority. Police records show that 50 suspicious-person reports were called in to police in the past year at Twin Lakes. They also show eight burglaries, nine thefts, and a shooting just in the past year. In all, police had been called to the 260-unit complex 402 times from Jan. 1, 2011 to Feb. 26, 2012. “He (Zimmerman) once caught a thief and an arrest was made,” said Cynthia Wibker, secretary of the homeowners association. “He helped solve a lot of crimes.” Licensed to carry a firearm and a student of criminal justice, Zimmerman went door-to-door asking residents to be on the lookout, specifically referring to young black men who appeared to be outsiders, and warned that some were caught lurking, neighbors said. Zimmerman called police 46 times since Jan. 1, 2011 to report disturbances, break-ins, windows left open and other incidents. On nine occasions, he saw someone or something suspicious. As a minority himself, he’d zealously state it’s not a racial issue, but one where his first hand accounts lead him to suspect young African American males in the area. On February 26, 2012- On February 26, 2012, George Zimmerman was on his way to a grocery store when he saw Trayvon Martin walking through his gated community. It wasn’t someone he was familiar with. He was hooded and roaming around the secured community. Break-ins had occurred before and, as George said in the call to 911, “they always get away.” It was raining and the young man seemed to have no destination in mind. His hands were in his pants and he was just roaming around suspiciously. Zimmerman called the police and reported a suspicious person, describing Martin as black, acting strangely and perhaps on drugs. Here is the 911 call. During the call, George reported Trayvon spotted him in his car and started staring at him and approached him. “Something is wrong with him,” he said, “he is coming to check me out. He’s got something in his hands. I don’t know what his deal is. Get an officer over here.” And then, “They always get away.” Here is full version of 911 call As a neighborhood watchman, he wanted to keep an eye on Martin and ensure arrest.. Zimmerman got out of his SUV to follow Martin on foot. When a dispatch employee asked Zimmerman whether he was following the teenager, Zimmerman said yes. The dispatcher told Zimmerman he did not need to do that. He did not tell him NOT TO follow Trayvon. Zimmerman told Police he had lost sight of Martin and was walking back to his SUV when Martin approached him from the left rear, and they exchanged words. Martin asked Zimmerman whether he had a problem. Zimmerman said no and reached for his cell phone, he told police. Martin then said, “Well, you do now” or something similar and punched Zimmerman in the nose. Here is the call where someone’s screaming ends by gunshot- Zimmerman fell and Martin got on top of him and began slamming his head into the sidewalk, Zimmerman told police. Zimmerman began yelling for help. Several witnesses heard those cries, and there has been a dispute about from whom they came: Zimmerman or Martin. Zimmerman then shot Martin once in the chest from very close range, authorities said. Zimmerman is described as 5-foot-9 and well over 200 pounds while Martin was 6-foot-3 and 150 pounds. He was athletic from playing and excelling in sports. A nearby resident, named John, saw Zimmerman on the bottom of an altercation. He was interviewed off camera. He said he’d call 911. He looked back out his window and noticed Trayvon was now the one on the ground and appeared dead. That interview is here- When police arrived less than two minutes later, Zimmerman was bleeding from a broken nose, had a swollen lip and had bloody cuts on the back of his head. Paramedics gave him first aid, but he said no to going to the hospital. He got medical care the next day. Police played the 911 tape for Trayvon Martin’s father, who told police that the voice screaming was not the voice of his son. He was also noticeably shaken in this interview taken the next day- Zimmerman’s mugshot- As for any past legal blemishes, Zimmerman was once arrested for battery on a law enforcement officer when he interfered in a friend’s arrest. The charge was reduced to simple battery, and he entered a plea that allowed him to have a clean record and qualify for a concealed weapons permit. Not the child you’ve seen on television- The Miami Herald reported Trayvon Martin had been suspended from school three times. A Miami-Dade Schools Police report shows that on Oct. 21, staffers monitoring a security camera at Dr. Michael M. Krop Senior High School spotted Martin and two other students writing “W.T.F.,” an acronym for “what the f—,” on a hallway locker. A security employee who knew Martin confronted the teen and looked through his bag for the graffiti marker. According to the Herald, the police report said that Martin’s backpack contained 12 pieces of jewelry, in addition to a watch and a large flathead screwdriver, which was described as a burglary tool in the report. Martin was asked whether the jewelry, which was mostly women’s rings and earrings, belonged to his family or a girlfriend. “Martin replied, ‘It’s not mine. A friend gave it to me,’ ” the Herald quoted the report as saying. Martin declined to name the friend. School police impounded the jewelry and sent photos of the items to detectives at Miami-Dade police for further investigation. “Martin was suspended, warned and dismissed for the graffiti,” according to the report prepared by the Miami-Dade Schools Police. That suspension was followed by one in February after in incident in which Martin was caught with an empty plastic bag with traces of marijuana in it. The Herald said it had obtained a school police report that specified two items: a bag with marijuana residue and a “marijuana pipe.” That suspension was the third for the teen. On Monday, the family also acknowledged that Martin had earlier been suspended for tardiness and truancy. Trayvon Social Media- Allegedly using the Twitter handle, @NO_LIMIT_NIGGA, Trayvon is attributed to tweeting the following- It shows a youth, caught up in the slang and life you hear in rap songs and on the streets. It shows a far different picture than the innocence portrayed on television. He indicated on social media he didn’t have a phone, yet supposedly had one at the time of the incident. On the same day, he shared an exchange about someone needing marijuana who wanted some business with Trayvon. He also was mentioned as involved in an altercation with a bus driver. There are a lot of missing pieces about the young man.

Conclusion-

Both men had their issues and the media has sensationalized this case far beyond reality.  At then end of the day, Zimmerman was NOT a police officer.  He was an overzealous citizen and had no business acting as enforcer or upholder of the law.  No permit or license gives anyone the right to hunt another human.  Whether he intended to shoot Trayvon or not, he did.  He did so because he elected to carry a firearm with him.  Why? To protect a neighbor’s grill or other property?  Unacceptable.  It led to a tragic death.  He initiated and instigated the confrontation.  Self Defense or not, he killed Trayvon Martin, because he took justice in his own hands.  The video of him at the police station impeaches his credibility- no grass or dirt stains on his clothes and no blood, swelling and minimal abrasions are present. Minor head swelling might confirm an attack, but he’s seemingly lied about the nature of the events.

He should be tried for the killing of Trayvon Martin.  He took the law into his own hands when he stepped out of his truck to find Trayvon.  To do so, with a gun, was grossly improper.

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Deborah Kropp versus Coca Cola

After a week of trial, an Alachua County jury entered a total verdict of over $1 Million in favor of Gainesville resident, Deborah Kropp, stemming from an automobile wreck that occurred July 20, 2007. Her attorney was John M. Phillips of Jacksonville, Florida.

“It was years of David versus Goliath. We had to fight for everything and they had 5 different lawyers working on the case. Despite it being a rearcollision, they asked questions about things like tire wear. Misrepresentations were made during discovery, including a failure to disclose who did repair work on the Coca-Cola vehicle and failure to provide repair records until weeks before trial, almost two years after they were requested. “She was victimized in a wreck, then victimized by their doctor who said she was “faking it,” despite admitting she had permanent injuries and chronic pain stemming from the wreck.” said John Phillips.

The case involved a wreck on County Road 225. Coca-Cola admitted it was understaffed and a convenience store was running out of product. They asked a warehouse worker, with little prior driving experience and a negative driving and criminal history to run product to the store. As he was returning, he saw the Kropp vehicle from about 300 feet. He failed to slow or stop until about 150 feet, leaving 140 feet of skid marks according to the Police Report. Worse still, as the driver slammed on the brakes, an unsecured toolbox slid onto the accelerator, nullifying the driver’s attempts to stop the vehicle. Mrs. Kropp’s car was hit from behind and launched into the air. The driver was cited for careless driving.

At 55 mph, you travel 60 feet in 3/4 second or about 81 feet per second. The distance traveled from the time your brain tells your foot to move from the accelerator until your foot is actually pushing the brake pedal. The average driver has a reaction time of 3/4 second. This accounts for an additional 60 feet traveled at 55 mph. It would have taken him well over 140-160 feet to stop.

She ultimately underwent 3 surgeries and has been recommended three more. Medical bills totaled over $250,000. “Coca-Cola called a few days before trial and raised their offer from $35,000 to $75,000. We declined as we literally were on the steps of the Courthouse walking in for hearing on two separate motions seeking sanctions from Coca-Cola and its counsel. It was yet another insult on top of cumulative injuries to say the least,” said Phillips.

“When someone breaks your fishing rod and says he is sorry, they might be accepting blame. But when he says ‘I am sorry’ and gives you a new fishing rod, that is accepting responsibility. Coke did neither. They used unlimited resources to try and prove they didn’t break it or make the owner give up on pursuing it. I don’t give up,” commented Phillips.

”Tort Reform” is the movement to limit the amount of money the injured can receive in a lawsuit.  It is based on a perception that litigation is out of control.  The “McDonald’s Coffee Case” is the most cited example of how out of control things supposedly are.

I have several Million dollar awards and in every one, I proved my case to the insurance company or jurors.  There have been some crazy verdicts, but I defer to those juries.  They saw it and weighed the evidence.

How many of you have heard of the McDonald’s Hot Coffee case? You know the one- where a woman spilled hot coffee on herself and won a “gazillion dollars” from a jury? Sometimes the facts can be misconstrued. With so much negative publicity about this verdict, let’s look at the case from the woman’s side.

I recently had a trial, where the Defense attorney described the verdict as renegade and frivolous, he challenged the jury to have the courage to be reasonable and acted as if this case was some jackpot justice, and a trivial curiosity at that.  it wasn’t.

So, I am going to tell you “the rest of the story,” some facts of the case that you may not have known, some facts that may give you pause to re-think your opinion about the verdict.  Much more can be learned in the special, “Hot Coffee,” a documentary airing on HBO on Demand and on Netflix.  It’s worth watching,

The woman was 79-year old Stella Liebeck who lived in Albuquerque, New Mexico. She earned $5000 a year as a sales clerk. One February morning in 1992, Stella and her grandson drove through a McDonald’s drive-in to buy food and coffee. She sat in the front passenger bucket seat of her son’s Ford Probe car and she was wearing sweat pants.  The car didn’t have a cup holder, so he put the drink in her lap to add sugar and cream.

Her injuries were very serious. She suffered the most severe kind of burns – 3rd degree burns over 6% percent of her 79-year old body. A third degree burn is when all the layers of the skin are burned completely through, called a “full thickness burn.” She went through skin grafts where skin was shaved from one part of her body to place it on the burned areas. She was in severe pain.

Two weeks later Stella and her family wrote McDonald’s to tell then about the coffee spill, and her burns.  She wanted to protect others and though they should help with her exorbitant medical bills.  They ignored her and turned a deaf ear.

They ultimately offered her $800, despite pain, surgeries, scarring and well over $10,000 in medical bills.  $800?

How hot is too hot? McDonald’s required its restaurants to brew its coffee at 195 to 205 degrees and then keep it for sale to customers at 180 and 190 degrees. By comparison, 2010 ADA Standards for Accessible Design says, “Bathtub shower spray units shall deliver water that is 120 degrees F (49 degrees C) maximum.”  The human pain threshold for hot water is 110 F, and you would pull away (assuming you have sensation) from water that hot. A Harvard Medical School study of water temperature on adult skin shows that water of 120 F will cause a 2nd degree burn in eight minutes; raise the temp to 124 F, and it will cause a 2nd degree burn in two minutes; at 140 F it will cause a 3rd degree burn in five seconds — and instantly at 160 F!

McDonald’s argued: everyone knows coffee is supposed to be served hot, so that could not have been a surprise to Stella. Our cups even have the warning “hot” printed on them.  Everyone admitted hot coffee is unsafe to drink at 180 to 190 degrees, and it will cause burns to the throat if swallowed within the first few minutes. It can even cause severe burns at 130 degrees.

More than 700 people reported burns from drinking or spilling McDonald’s coffee over the years, and despite the large number of burn complaints, the company continued to serve it at least 180 degrees. The response- “we are glad it wasn’t more.”

Because Stella was wearing sweat pants the hot coffee soaked through them and it took her about 30 seconds before she could pull them away from her body. Too late to avoid the serious 3rd degree burns.

The company further argued that it had sold more than 10 BILLION cups of coffee over the years and yet received very few complaints. It admitted it had strengthened and tightened its styrofoam coffee cups and stamped a warning on them because of some of the burns. McDonald’s called the 700 burns “statistically trivial.” A witness for the plaintiff called that remark “corporate callousness.”

McDonalds said is sold one BILLION cups of coffee each year nationwide. That was nearly 2-and-a-half million cups a day.  After hearing all the evidence, the jury found that McDonalds was 80% at fault and Stella was 20% at fault. It awarded Stella Stella $160,000 to compensate her for her injuries, and also gave her $2.7 million in punitive damages.   Punitive damages are not allowed in most states in cases lie this.

The trial judge reduced the entire judgement to $450,000. McDonalds did not appeal and the matter was settled confidentially.

Was it Stella’s fault for trying to add sugar and cream while sitting in the car? Or was it McDonald’s fault for selling coffee so much hotter than any other place?  You be the juror.

As a big corporation, with a lot of money, you have two potential solutions: (i) try to influence all potential jurors through multi-million dollar advertising and PR campaigns; and (ii) pour lots of money into judicial elections – only supporting candidates that are pro-big business and anti-consumer.

Meanwhile, the big corporation offers Plaintiffs $800, like they did in this case.  In my recent case, we got a total verdict of $1.1 Million.  A week before trial, I was insultingly offered $75,000 despite medical bills of over $260,000, including 3 past surgeries and 2 more surgeries in her future.  Is that okay with you?  What we need is justice reform.