Blog

 Posted on March 15, 2023 in Medical Malpractice

Chris Maragos was a special teams player for the Eagles. He recently won a $40 million dollar verdict in Philadelphia against Rothman Institute in which he claimed that their failure to properly evaluate a meniscus tear in his knee cost him years of football earnings. His lost earnings made the number far higher than any other individual would normally see.

Lost earnings are very hard to prove for many people. If you are W-2 employee, they are fairly straightforward. Many people these days are not W-2 employees and it is very, very hard to prove lost earnings in those situations. I once had a client very mad at me because they felt that their real estate commission income was not fairly valued in a settlement conference. The client had earned about $75,000 per year in commissions as a realtor.  But, the case occurred in 2010, in the middle of a terrible real estate downturn, when no houses were selling. It was very hard to justify a lost earnings value in that case, but the client definitely had lost earnings. Whether we could prove causation, or whether the earnings loss was caused by her injury was very problematic. Eventually, the client was pissed off, but accepted the settlement offered. I have not heard from them since then suggesting that they still felt aggrieved by their lost earnings.

Continue Reading ››

 Posted on March 09, 2023 in In the News

What do Ukraine and Taiwan have to do with each other? Well, Xi Jinping has stated that he would like his military ready to be at war with Taiwan by 2026. So, the lesson China is learning is that it will take a bit to invade a well-armed motivated neighbor.

I studied a lot of history as a college student and the study of war was part of that education. The Russians are notoriously stubborn and this war will continue for a while.

It does give both NATO and Russia and China/North Korea/Iran an opportunity for everyone to test our their alliances and their military hardware. To some extent, this is good for our military readiness in that we get to test out our missiles, our battlefield effectiveness etc. Sadly, we do that by killing a lot of unmotivated Russian troops, while helping out the Ukrainians.

Despite my contempt for the current Republican party and its mouthpiece, Fox News, it is really shocking to see any republicans leaning towards taking Russia’s side in any aspect of this war. We have defended Israel as the only friendly democracy through thick and thin and we should absolutely defend Ukraine. The notion that Russia is disposed positively towards us could not be more wrong-headed based upon history. That Trump was actively seeking to do Putin’s bidding and seeking to undermine Ukraine is unsurprising. But, to see the Republican party lining up to restrict aid to Ukraine or mimicking Russian talking points is really shocking. We are on the right side in helping the Ukrainians.

Continue Reading ››

 Posted on March 09, 2023 in Case Matters

The key question in these cases is what was the standard of care at the time of the alleged negligence.  Unlike in law, where we have years of cases telling us what the general standards are, in medicine, there are few corollaries. If you are an OB-GYN, there is the American College of Gynecologists (ACOG) that outlines a lot of care protocols. But, for a lot of the other areas of medicine, the standard of care is usually what an expert or experienced doctor says it is. For example, if you are performing surgery and cut a ureter by accident, is that below the standard of care? Probably not. You may be harming someone because you affect their urination or cause a significant infection etc. But, is it below the standard? Probably not because it is in the surgical field you were operating in and a nearby structure. How about cutting something else? Maybe you cut a nerve that cannot be repaired? That may be below the standard of care if you are operating in an area with several significant nerve endings. You are not supposed to cut structures that look like nerves, which are generally white fibers, as opposed to ureters which are less distinct. As you can see, judgment call cases don’t make great malpractice cases if they are subject to disagreement over what the standard is or was.

Continue Reading ››

 Posted on March 09, 2023 in Auto Accidents

The Schuylkill Expressway is very busy Wednesday mornings. It seems that larger employers are forcing people back to work in the mid-week and employees are resisting that on Mondays and Fridays. As a result, 76 is back to being pretty packed with cars on Wednesdays.  Office occupancy figures are still around 48% on the busiest days, which is still well below 90% or more pre-pandemic. Miles driven have recovered to pre-pandemic levels on a national scale, but around Philadelphia it seems that miles driven must still be fairly low, as there are plenty of suburban professionals working from home.

The net result of this for personal injury lawyers, insurance defense lawyers, and insurance companies and their employees is that claims are down by 33% or so. This is bad for business on all sides. At the same time, with the normalization of depositions conducted by zoom, the practice has become far more efficient in terms of hours used. We no longer have to go to Court except for trial. I used to go to Court to sit at a calendar call for frivolous motions in discovery court that I knew I would win. That would waste three to four hours of a day, accomplish nothing, and get me a $40 parking charge. That is now gone. Judge Anders in Philly conducts discovery court by zoom and the same things happen and get done and I am sitting in my office or in my basement. It’s a huge change.

Continue Reading ››

 Posted on March 09, 2023 in Case Matters

Former employee Frank Pantangelli testifies against former employer Michael Corleone

Should you represent your business’ former employee? From the plaintiff’s perspective, I am always happiest to see a business’ former employee testifying at a deposition without counsel. I am also puzzled by the failure of a former employer to represent the witness. There are multiple reasons why a business may not want to represent a former employee including bad blood, the expense of preparing and representing them, potential conflicts of interest etc. However, absent these situations, failing to represent a former employee raises a lot of red flags and makes the witness ripe to be turned against the former company.

Former employees know where the bodies are buried, are not shy about sharing gossip, bad practices, things that fell through the cracks etc. Former employees are also remarkably willing to dump on the employer, regardless of whether they are telling the truth. There is very little risk to a former employee telling the truth about an employer and if there is no counsel there to temper their testimony or at least be aware of what is coming, it is a recipe for a plaintiff’s lawyer’s field day.

Continue Reading ››

 Posted on March 01, 2023 in Uncategorized

It seems like we skipped right over winter this year. This is not good for your local personal injury lawyer. I usually start the year off with a bevy of slip and fall on ice cases and work into the rest of the year from there. This year, not so much. Nevertheless, it is nice to see a warmer season coming and outdoor cycling and tennis are on the horizon for me.

Out west, the weather picture is much different. I was skiing at Snowbird last month and they have had so much snow that it is just piled everywhere and they are used to moving snow around. Snowbird is a super-challenging ski mountain outside of Salt Lake City, Utah. I’m an expert skier here in the east, but out there is a whole different animal. If you point your skis downhill there, you better be locked in and ready because you will be going very fast. I skied about 26,000 vertical feet in four days.  All of it downhill.  That is like skiing a very long run down Mt. Everest.

What makes things hard there is every decent run you have to crest and drop in over a lip to start your run. We don’t do that here. Second, the mountain is at 11,000 feet. So, buckling your boots leaves me out of breath and the runs are a little more tiring for your legs. Finally, the locals seem to put moguls or bumps in their runs through the trees which we don’t do here either. On one run, I was trying to escape the moguls through trees and skied out onto a normal open bowl but was conked on the helmet by a tree branch I did not see coming. Thanks helmet!

Continue Reading ››

 Posted on March 01, 2023 in Case Matters

In my experience, the prime motivating factor is that both sides do not know how a jury will decide the case and therefore neither wants to take the risk of a verdict for or against. Juries are very unpredictable in the mid-six figure cases. On smaller cases, juries may not care too much. On huge cases involving deaths or paralysis, jurors will care and likely find for plaintiffs. But, in between, the jury is unpredictable.

In Pennsylvania, lawyers are not allowed to tell the jury what we think the case is worth or even what they should award. Often, this means that the jury has no guidance as to value. Both sides of a case may be able to settle the case for $300,000 meaning both value the case somewhere in the 200-400k range. But, a jury does not know that. A jury may think that they are doing the plaintiff a huge favor and give them $100,000. In that case, the plaintiff has given up huge sums by going to trial.

So, since we cannot suggest a number to the jury and since the jury is never told what the insurance coverage is in a case, they have no baseline way to assign value. As a result, in most mediations or negotiations, a client will come to understand that they are better taking 80% of a case’s value, provided that that is acceptable, versus rolling the dice and hoping that the jury agrees with the valuation that seasoned professionals assign to a case.

Continue Reading ››

 Posted on March 01, 2023 in Case Matters

I am in the middle of a case involving a slip and fall at a TSA checkpoint at our beloved Philadelphia International Airport (PHL). It now involves a gobbledygook of abbreviations as with many things involving the federal government. As the lawyers reading may know, you cannot sue the sovereign or your government without their expressed permission. You can sue the federal government or the City of Philadelphia, but only within certain areas. My case against TSA basically says that if you force someone to take their shoes off, you should be held responsible when a certain portion of PHL and TSA passengers fall and hurt themselves. Makes sense right? My client would not have fallen if she had her shoes on. Simple enough, right? Well, no. There is a whole body of caselaw regarding suits against the feds. I am now painfully well-versed in the Discretionary Function Exception (DFE) and the Due Care Exception (DCE) to the FTCA. Fun stuff, huh?
So, the short answer to my case is that you can sue the federal government or TSA, but only if they are not carrying out some discretionary function. So, if you approach TSA and they think you need extra screening because you have a t-shirt with a huge pot leaf on it, that is TSA discretion and you cannot sue for that. But, in my case, there was a TSA rule saying no shoes. So, I am arguing that there is no discretion there and hence the DFE does not apply. A judge will make the ultimate call on who is right about the applicability of the DFE to this case. There is also this due care exception. If a federal employee uses due care in the execution of a regulation or statute, then the feds are not liable. But, and this is a big but, this only applies if there is a regulation or statute directly on point. The shoe removal rule is neither and is merely a policy. While it may be splitting hairs or nitpicking, this is what lawyers do. The shoe removal rule is neither reg nor statute. Therefore, the DCE does not apply. Why? Well, there is an old rule that statutes or legislation is strictly interpreted. If Congress or the Commonwealth did not specifically list something in a statute, a judge cannot just read into the law what they think the government intended. So, I think I will win on both these counts. But, I will report back.
Another amusing thing about the FTCA is that despite the sixth amendment right to confrontation and a jury trial, plaintiffs are not entitled to a jury trial in these cases. So, we will have a bench trial. Nevertheless, do you see a pattern emerging here? Yes, you can sue the government, but we are going to put so many restrictions on it that it is very challenging to even get to a trial.
By way of example, a semi-recent case, Pellegrino, involved a TSA officer filing false charges against a passenger who mouthed off to the TSA officer. There were any number of potential bars to the lawsuit, but the Court was clearly fed up with the TSA conduct and the federal government’s efforts to immunize itself from asinine conduct. In another PHL case, Menkin, the TSA officers took a lady’s cane away as the cane was not TSA approved. Unsurprisingly, the lady fell and broke a bone. The Court said that is bad/stupid/not protected, take your pick. Menkin won that one.
In my current case, there has been testimony that the TSA supervisors, PHL supervisors and others knew about Menkin, knew that people would periodically fall due to the slippery floors and the shoe ban, but just did not do anything with that information. In my normal non-FTCA practice, this would be damning testimony. Can you imagine a bank officer saying, yes, when it rains, people seem to go crashing on our marble floors, but we really don’t care and definitely don’t put mats down to save them from falling??? A jury would promptly crush the bank. But, in the same scenario, the federal government says we don’t care.

Continue Reading ››

 Posted on February 08, 2023 in Uncategorized

Scene from Franz Kafka’s The Trial (1963) Starring Anthony Perkins and Orson Welles

 TRIAL REPORT: COSTS/BENEFITS OF TRIAL FOR THE SMALL PERSONAL INJURY PRACTICE:

I try to be on trial once or twice a year for various reasons. One, I like being on trial periodically. I like the focus that comes with the need to actually prove everything in a one week period to a bunch of fellow residents of our area. Trials are really a small part of personal injury practice. Maybe 90% of cases end up in settlements whether big or small.  That leaves about 10% of cases that get to something near trial. Even at trial, there are many cases that settle at jury selection. So, probably 5% or so of all personal injury cases go to verdict.

From a professional case selection standpoint, cases going to trial is not good for business, but the ones that go to trial are often hard to pick out when the case first comes into the office. If you knew that your case was going to go all the way to trial, you might turn it down or refer it out because they are not usually good for business from a bottom line perspective. Why is that?

Continue Reading ››

 Posted on January 31, 2023 in Uncategorized

Chat GPT has taken the world by storm, and being curious, we thought we’d ask what it thought about our favorite topic–suing the City of Philadelphia. Here’s what the robot had to say:

Suing the City of Philadelphia involves several important considerations that need to be taken into account before taking legal action. The following are some of the key considerations to keep in mind:

1. Sovereign Immunity: The City of Philadelphia is a government entity and as such, it is protected by sovereign immunity, which means that it cannot be sued unless it waives this immunity. This immunity can be waived in certain situations, such as when the City is sued for monetary damages resulting from negligence or breach of contract.
2. Statute of Limitations: In Philadelphia, the statute of limitations for a personal injury or property damage case is two years from the date of the incident. If the claim is not filed within this time frame, the individual may be barred from pursuing the case.

   Continue Reading ››