Category Archives: Legal Blog

San Francisco Personal Injury Attorney Brett A. Burlison looks at serious issues impacting injury victim, consumers, and the legal community.

Wills And Trusts After A Personal Injury

When someone suffers a life threatening injury it’s time for them to get their affairs in order. When someone dies and their affairs are not in oder, their loved ones can be burdened by overwhelming tasks and obligations.

The New York Times this morning (9/6) has a good article on the various steps that need to be taken for estate planning. Having helped families after wrongful deaths and personal injuries, we have seen the consequences up close of a lack of planning. We have also had first hand experience with this issue recently and write from that experience.

Here is what families need to consider.

A living trust.

Living trusts have been promoted and over promoted. These arrangements are useful if you have a large estate, a business that will continue to operate, lots of real property, or if the spouse of the injured individual is incapacitated. In other words, if you feel that either you or your spouse may be incapacitated at some point and after the passing of the other, then a trust with a specific trustee is good idea.

But if you have an average size estate, than a trust may not be necessary. And if you are creating a living trust simply in order to avoid probate, this is not a good idea. First, you may not be able to avoid probate simply because a trust was created. If there is any real property outside of the trust, then probate will still be necessary to clear title. Second, in order to truly avoid the potential for probate, every single property must be listed as an asset of the trust and held in the name of the trust, which may require the transfer of title, which in turn may create legal fees similar to those generated by probate.

If you are going to utilize a trust, an assignment of trust is also a good idea. An assignment of trust is a legal document, usually done concurrently with a trust, that indicates more specifically that all properties both real and personal of the drafters are thereby assigned to the trust.

A will.

Always a good idea. It doesn’t matter if you have a trust or not, have a will drafted. If you do have a trust, a simple “pour over will” can be utilized and is a good idea. A “pour over will” is simply a will that “pours over” all assets of the decedent  into the trust. And have your will drafted by an attorney who specializes in wills and estates and get it done right. It’s the best money you will ever spend.

Before you have your will drawn up spend a considerable amount of time deciding how you want it structured – i.e., who gets what. Your will represents your intent. So make sure it truly does.

And once you have thought about it, hired a competent attorney to draft it, discussed it in detail with your attorney, and had it drafted, don’t change it. Provide in the document for unforeseen deaths of heirs and subsequent heirs. This will ensure that once your will is created, it doesn’t need to be altered.

If you do have to alter your will, destroy the old one, draft a new one, and again make sure it is done professionally and as you want it.

Powers of attorney.

General powers of attorney and medical powers of attorney are excellent ideas and should be utilized by everyone regardless whether they utilize a will or a trust or both. And again, make sure these are done by an attorney specializing in this service.

Books have been written on this subject and there are many good ones out their if you want more information.

Good luck.

Poultry Plants Get To Police Self

Chicken processing plants now get to act as their own inspectors.

Chicken processing plants now get to act as their own inspectors.

As reported by the San Francisco Chronicle and other media outlets, the US Department of Agriculture has released new poultry-inspection rules that will adversely affect workplace safety.

According to the New York Times, the executive director of Food & Water Watch, a food and worker safety advocacy group, if a plant has an inspector on the assembly line at all, that inspector will have to inspect 2.33 birds every second for potentially harmful defects.

Further, others have stated that there are no accompanying worker-safety regulations designed to address the stress and injuries often suffered by workers due to the repetitive motion involved in the work at these plants.

And animal-rights and welfare organizations were also highly critical of the new rules.

The rules announced on Thursday work like this: poultry plant operators will now have the option of conducting inspections of their line for harmful defects in the birds themselves, without the supervision of an Agriculture Department inspector. The plants will be allowed to turn out 140 birds per minute. But if a plant doesn’t want to make their own inspections, an agent would remain on the line to inspect 140 birds a minute for flaws, contamination, feces or any other defect that would render the product unacceptable.

Various groups in favor or worker safety and food safety are exploring ways of blocking the new rules.

Hamburgers anyone?

Supreme Court Aims To Limit Patent Lawsuits

The Supreme Court just decided a patent case this week, Alice Corp. v. CLS International Bank and affirmed the Federal Circuit’s ruling. And that sounds simple enough. But it’s not.

Alice Corp. involved an attempt at patenting what many believed was simply a system that had been around for a long time by using a common computer and claiming that the process was deserving of a patent. The Federal Circuit thought otherwise and the Supreme Court backed them up. And we agree with the Supreme Court’s ruling in Alice – i.e., we think the Court got it right.  

When Alice Corp. is viewed in the context of the other patent cases decided by the Court this term, however, a total of six and all decided unanimously, what emerges is a clear message from the Court – the Court wants fewer patent lawsuits. 

Patent lawsuits have been the rage in the legal community for the past decade or so. Huge verdicts against big companies by seemingly small players, aided by juries in places you would have never thought would be a hot-bed of intellectual property litigation, for instance, Marshall, Texas, have fueled a boom to patent attorneys in both big and small firms.

Some see this as an example of plaintiffs gaming the system to win large judgments against large corporations on dubious claims. Others however, the plaintiffs bar included, see this as simply the result of a problem: too many corporations were trampling the rights of inventors who had legitimate claims against those corporations for trying to misappropriate what these individuals had worked years to create.

So, what does the Court do?

The same thing that conservative courts usually do when there appears to be a problem resulting in lots of litigation – not fix the problem but make it harder to bring the litigation.

This can be seen in the Court’s treatment of fee-shifting rules as well as the Court unwillingness to support patents, though without clear doctrinal guidance, in cases like Alice Corp.  This coupled with the reforms brought about by the America Invents Act of 2011, like “inter pares review” process, may spell at least a slowing if not cooling of patent litigation. Of course, whether or not these opinions and reforms actually address the problem of patent infringement is another story.

If you would like to read more about Alice Corp., including the briefs filed by attorneys in the case – click here for the Supreme Court of the United States Blog or SCOTUS Blog.

Scalia Error – Mistake Or Flip-Flop?

This week Supreme Court Justice Antonin Scalia (and Justice Thomas who joined Scalia’s dissent) made a pretty glaring mistake in Environmental Protection Agency v. EME Homer City Generation, L.P.

This fact-checking mistake never should have happened. But it provides us with an opportunity to look into the workings of a biased justice.

The mistake was regarding his position and the EPA’s position in a past case, the opinion for which he authored. That’s pretty bad. And this has been picked up by everyone in the legal blogosphere. Justice Scalia’s clerks have been sacrificially thrown under the bus, as has the process by which opinions are rendered by members of the Court.

But is this really an accurate description of what happened? Or is what happened simply a blatant example of an outcome-driven Justice flip-flopping per usual in order to support industry?

Let’s see.

EPA v. EME Homer City, involves the EPA (under a Democrat administration) asserting that under the Clean Air Act it’s not precluded from considering the costs of regulating the pollution it’s trying to regulate. Industry in this case asserted that the EPA was precluded from considering costs of the regulation.

Scalia sided with industry and argued that, “This is not the first time the EPA has sought to convert the Clean Air Act into a mandate for cost-effective regulation,” citing Whitman v. American Trucking Assns., Inc.

The problem and error was that’s not what he said in Whitman.

In Whitman he sided with the EPA (under a Republican administration) asserting that it was precluded from considering costs in setting regulations, and it was industry — the trucking association — that wanted costs to be considered.

Industry may have lost the battle in Whitman that day in 2001 but with Scalia’s help it won the war because the decision precluded the EPA from arguing in the future based on the costs of a particular regulation, which compared to the benefits are often low.

In essence, in 2001 it seemed like industry was losing but it wasn’t. And Justice Scalia’s position was actually helping not harming industry in general.

That brings us back to EME Homer City. 

The EPA wanted to consider costs. Industry didn’t. Why? Because the costs were low, like they usually are. The regulation at issue was as Justice Scalia wrote, “cost-effective.” So what does Justice Scalia, and Justice Thomas, do? They side with industry.

And this would be simple enough. However, in taking the side of industry they use for support a decision that Justice Scalia wrote in that may have ultimately aided industry but did not say what he thought (or perhaps remembered).

So, maybe this mistake is a simple factual error, which God knows we all make. Or maybe this was a blatant flip-flop by an outcome-driven Justice willing to find support for industry even when it does not exist.

Engineers in Switch Inquiry Suspended by GM

Due to product liability and personal injury concerns, General Motors (GM) has recalled some 2.6 million vehicles.

The recalls emanate from faulty ignition switches, which GM intends to begin repairing this week. So far 13 deaths have been linked to the defective switches.

On Thursday (4/10) the company announced that it was suspending with pay two engineers as part of its internal investigation into the decade long failure to recall the vehicles.

GM did not identify the engineers, though Bloomberg and the New York Times did. The move to place the engineers on paid leave came after the company was briefed by a former US Attorney hired by GM to investigate the problem.

And, GM is still fighting calls for a “park it now” order arguing that such an injunction would confuse consumers.

Personal Injury And Access To Medical Care

We need a single payer health care system and we need it now.

I’m a personal injury attorney. What that means is that I represent individuals who are seriously injured in accidents, falls, workplace injuries, trucking accidents, boating accidents and the list goes on and on – you get the picture.

You probably wouldn’t think that my job description includes “health care provider,” but it does, or at least it often feels as though it does.

When I began my practice, at the beginning of the previous decade, very little of my time was spent on finding and acquiring medical care for my clients. Now over a third of my time is spent either locating and obtaining health care for my clients or dealing with the liens, bills, and aftermath of that care.

The reason I, and every other personal injury attorney, spend so much of time finding and obtaining and managing medical care for our clients is because the health care system in this country is broken. Seriously. Fee for services has not worked, insurance controlled care has not worked, it’s been a total and complete failure.

Proof of this failure is that there continue to be individuals who cannot afford and cannot access adequate health care. People are still going bankrupt because of medical bills, people are still having difficulty getting the care they need, and this is wrong. The Affordable Care Act was a good step in the right direction but it was only a step. We have an inefficient, ineffective, bloated and costly, outdated, and immoral health care system in this country that needs to change and change dramatically. 

Several years ago while traveling to New Zealand I became ill; I got on the plane with a bad cold and got off with bronchitis. After about a day of me coughing my lungs up, we decided that medical care was needed. But wait, that would mean utilizing New Zealand’s socialized medicine – the drab and dirty facilities, the red-tape and bureaucratic nightmare and rationing of care, the horror! Not really.

My wife’s cousin’s doctor agreed to see me and I got in the same day. The facility was new and clean and bright, there was parking, the wait was less then ten minuets, I got to visit with an M.D., the treatment and care were excellent, and the cost, for both the treatment and prescription that I was given, was barely more than my co-pay would have been in California for the visit alone. In short, everything was better.

Two articles this weekend in the New York Times illustrate the need for a single payer health care system. The first is  an excellent article in yesterday’s (Sunday) paper illustrating how even a small medical advance can translate into serious increases in bills for patients. And what an increase in bills means is more financial burden, more hardship, and more difficulty for patients when they can least handle it.

The second is an article on the implementation of a single payer system in Vermont. The full system won’t be in place until 2017 but it is meant to serve as a test ground to see if a single payer system can work in the US. There is of course no reason it shouldn’t work. A version of such a system has worked for Germany, Japan, Great Britain, France, New Zealand, Australia, and our closest neighbor Canada to name a few.

We will keep our fingers crossed that Vermont’s system is a success. But 2017 is a long time from now. And there are injury victims and the ill who need a better and more accessible system now.

If you would like to read the articles referred to above, you can find there here and here.

 

 

GM Recall

General Morots (GM) has recalled a total of 6.3 million vehicles so far in 2014. There is strong indication that GM did not address the problem effectively or efficiently when it first was reported.

There is also good evidence, based on questioning from members of Congress, that an engineer at GM may have lied under oath in a court case regarding what he knew and when he knew it about the faulty ignition switches that have been linked to 13 deaths and scores of personal injuries and accidents.

According to the the Wall Street Journal, here is a list of the makes and models of GM vehicles impacted  by the recall.

Prescription Opiates As Gateway to Heroin

When someone is injured in a personal injury accident often prescription opiates are prescribed for their pain. And often they are initially perceived as a life-saver.

But these are powerful drugs that many physicians are starting to view as a gateway to heroin because of their potential for abuse and addiction.

Oxycontin and oxycodone, vicodin and hydrocodone are all opiates just as heroin is and, according to excerpts and as reported by the New York Times, have altered the landscape of addiction.

Rates of addiction and abuse of prescription opiates have risen to epidemic proportions in the last decade. And at the same time, we have seen a substantial increase in heroin use. According to experts, that’s no coincidence.

When people become addicted to prescription opiates often they must obtain the pills illegally. And when this starts, some individuals may question why they are paying inflated prices for prescription drugs when an equivalent dose of heroin is much cheaper.

We have written about the problems associated with prescription opiates before here on Legal Blog (see previous articles here) and how this has impacted workplace injury issues and safety.

When someone suffers a debilitating injury they need serious medications to help them cope with the pain and recover. But more needs to be done to encourage personal injury victims away from prescription opiates and toward better and safer alternatives. 

If you would like to learn more about prescription opiates and their potential for abuse and addiction click here for the New York Times article or here for the National Institute on Drug Abuse.

Marijuana Treatment For Traumatic Brain Injury

San Francisco Personal Injury Attorney Discusses Marijuana and Traumatic Brian InjuryMarijuana will be used in the near future to treat traumatic brain injury. Sounds crazy? It’s not. And here’s why.

When someone suffers a traumatic brain injury two variables impact its severity: first, the trauma or the primary insult to the head and/or brain, and second, a lack of oxygen to brain cells as well as swelling or inflammation that sets in after the initial trauma.

Often it is this second stage involving inflammation that actually does the most damage in a traumatic brain injury (TBI).

According to research conducted by Professor Yosef Sarne of Tel Aviv University’s Adelson Center for the Biology of Addictive Diseases at the Sackler Faculty of Medicine, and as reported by Science Daily, low doses of THC – the psychoactive component of marijuana – can halt the damage to the brain by protecting brain cells, which in turn may preserve cognitive function over time.

In other words, marijuana has neuroprotective qualities that enable it to protect the brain after trauma. 

And this should not be surprising. We know that both THC and CBD (the two most abundant compounds present in marijuana) have significant analgesic and anti-inflammatory qualities (see National Cancer Institute studies). We also know that because of these qualities the use of cannabinoids is being studied in the treatment of Alzheimer’s disease (AD) (see US National Library of Medicine National Institutes of Health studies involving Dr. Gary L Wenk – Infammation and aging: can endocannabinoids help?)

Because of the research being done regarding these neuroprotective qualities of marijuana, NFL commissioner Roger Goodell stated recently that the NFL was considering allowing players to use marijuana to treat concussions (mild traumatic brain injuries or MTBI) and other head injuries if the drug is recommended by a physician.

Here is what Professor Sarne’s research found according to Science Daily: after a traumatic brain injury extremely low doses of THC, administered over 1 to 7 days before or 1 to 3 days after the initial injury can jumpstart biochemical processes protecting brain cells from long-term cognitive damage resulting from hypoxia (lack of oxygen), seizures, or toxic drugs and in turn preserving cognitive function.

Dr. Sarne’s research and findings is nothing short of extraordinary. TBI impacts millions of people in the United States every year. Treatment protocols for these injuries, as well as the THC needed, could be made readily available to hospitals and paramedics across the country. And because of the wide window in which the treatment can be administered, the impact of the vast majority of these injuries could be dramatically negated. And thus the costs to our society in terms of future medical care and lost productivity due to TBI could be significantly reduced.

In the future Dr. Sarne’s research may be seen as no less revolutionary than that of a certain Dr. Fleming.

If you would like to read more about this study, Dr. Sarne’s research has been published in the journals Behavioural Brain Research and Experimental Brain Research.

 

What If Distracted Drivers Were Treated Like Drunk Drivers?

Distracted driving is no less dangerous than drunk driving. In 2011, according to the CDC (Centers for Disease Control and Prevention), 3,331 people were killed and 387,000 were injured in motor vehicle accidents involving distracted drivers. Those 3,331 people are no less dead because the drivers were simply distracted and not intoxicated.

So, why are distracted drivers not prosecuted and treated like drunk drivers?

Dr. Barron H. Lerner, M.D., asked this question in a post to the New York Times Well blog in Treat Reckless Driving Like Drunk DrivingDr. Lerner lost his 9-year-old nephew due to a distracted taxi driver recently in New York. His nephew was crossing the street in a crosswalk and holding his father’s hand when he was struck head-on by the taxi.

There was no evidence of alcohol at the scene of the collision. But Dr. Lerner suggests that more needs to be done in oder to discern when a collision is truly an “accident” (meaning the result of negligence) and when one results from reckless behavior on the part of a driver. We could not agree more.

Drunk driving is by definition reckless driving. It is viewed this way both by the law and by society and our culture. And it has become so because we have learned and shared and promoted the dangers and costs of driving while intoxicated. Distracted driving is no different.

According to the CDC, 69% of drivers in the United States ages 18-64 reported that they had talked on their cell phone while driving within the 30 days prior to being surveyed and 31% of U.S. drivers ages 18-64 reported that they had read or sent text messages or email messages while driving at least once within the 30 days before they were surveyed.

When someone sends or receives a text while driving their eyes are taken off of the road for an average of 4.6 seconds. At 55 mph this would mean that the driver as moved the length of an entire football field, blind.

So, should we treat distracted drivers under the law as we treat drunk drivers?

Well, a good place to start this discussion would be first, as Dr. Lerner recommends, to do more when a collision ends in personal injuries or death to discern the cause of the collision and whether or not texting or cell phone use was involved. And second, the public must be made aware of the dangers of texting and driving and/or using a cell phone when driving.