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Members of the Military Cannot Always Get the Compensation They Deserve

Drew Dixon — Wed, 22 Oct 2008 16:37:15 GMT

After watching a recent episode of Boston Legal, I became interested in the Feres doctrine. This doctrine stems from the Supreme Court case Feres v. United States, 340 U.S. 135 (1950).

In the Feres case the Supreme Court held that the United States is not liable under the Federal Tort Claims Act for injuries to members of the armed forces sustained while on active duty for those injuries resulting from the negligence of other members of the armed forces.

As you can imagine this doctrine comes into play in a number of medical malpractice cases. Based upon the holding of the Supreme Court, a military doctor can commit blatant malpractice without being held accountable. In essence, this doctrine bars active members or their families from successfully receiving damages for personal injuries resulting from the negligence of military doctors.

I truly do understand the arguments from both sides, however, this doctrine was established in 1950, more than 58 years ago. Don't you think its time our brave members of the armed forces get the compensation that they deserve.

Image source: Wikimedia Commons

Originally posted at InjuryBoard by Drew Dixon

How Our Current Administration Loves Phthalates

Frank Bailey — Mon, 15 Dec 2008 17:16:02 GMT

According to a lawsuit filed by the Natural Resources Defense Council, Inc., and Public Citizen, Inc. against the United States Consumer Product Safety Commission (“CPSC”), chemicals known as phthalates are used to soften plastics in children’s toys and other common consumer products. These chemicals are known to interfere with production of the hormone testosterone and have been associated with reproductive abnormalities. Numerous studies have linked exposure to certain phthalates with decreases in testosterone, malformations of the genitalia, and reduced sperm production, among other adverse effects.

In the Consumer Product Safety Improvement Act, enacted on August 14, 2008, Congress permanently banned the manufacture, sale, distribution, and import of all child care articles and children’s toys containing more than 0.1 percent of any of three different phthalates.

The General Counsel for the CPSC now has given the opinion that the ban does not apply to any toy or child care product manufactured before the effective date of February 10, 2009. This decision by the CPSC authorizes sale of banned children’s products after the statute’s effective date, despite Congress’s clear prohibition on any sale after that date.

The basic purpose of the CPSA is to ensure consumer protection. It appears this purpose has been thwarted.

In a letter dated November 13, 2008, on behalf of unnamed clients, counsel at the law firm Arent Fox LLP , Georgia C. Ravitz and Scott A. Cohn, asked the CPSC to “consider not applying the phthalates restrictions retroactively to inventory as of February 10, 2009.

Amazingly, in a decision published two business days later, on November 17, 2008, the CPSC General Counsel agreed.

By permitting sale of banned products after the date of the statutory ban, the General Counsel has contradicted Congress’s clear intent.

In reliance on this decision, manufacturers of children’s toys and child care articles may continue to manufacture and stockpile products containing the restricted phthalates now and sell them long after the ban on sale goes into effect in February.

This is yet another example of how the Bush administration is looking after Corporate America at the expense of our children's safety.

I urge you to contact your representatives and ask them to join Senator Barbara Boxer and Senator Dianne Feinstein along with Representatives Henry A. Waxman and Jan Schakowsky in forcing the CPSC to withdraw this decision.

Originally posted at InjuryBoard by Frank Bailey

Why Choose Our Firm

Sach Oliver — Mon, 05 Jan 2009 15:30:56 GMT

Every Monday morning we have a meeting to discuss our goals we intend on accomplishing for each of our clients that week. The meeting gets started early, sometimes as early as 6:30am. After we had our goals figured out this morning, I asked Leona, one of the world's greatest legal assistants, why should a person who is hurting choose our firm.

This is what she said:

"I believe that a potential client should choose our firm because we work our cases as if we were the client. We go out of our way to examine and investigate every possible avenue of compensation available to the client. We do all the investigative work and request all medical records, leaving the client able to concentrate on recovery. As a potential client, I would rather concentrate on healing and getting the rest necessary to fully recover instead of worrying about all the paperwork and phone calls that are required in pursuit of these cases. We are a full service firm and our main objective is to make the client’s life easier and to obtain the best possible outcome in every case."

Wow! It is wonderful to work with such caring people such as Leona. After hearing this, it makes it easier to understand why she works so hard for our clients.

Originally posted at InjuryBoard by Sach Oliver

Frank Bailey Named Outstanding Trial Lawyer of the Year

Ryan Scott — Tue, 05 May 2009 16:47:53 GMT

On Saturday, Arkansas attorney and InjuryBoard Blogger, Frank Bailey was named the Arkansas Trial Lawyers Association Outstanding Trial Lawyer of the Year.

This is the most prestigious award given by the Arkansas Trial Lawyers Association.

Many trial lawyers covet this distinction, and work their whole lives for it, but few attain the honor. Frank Bailey embodies all that we as trial lawyers should strive to be; he is compassionate, generous, hard-working, and skilled.

Speaking personally, Frank Bailey has been a mentor and a friend to me. If our greatest calling is to teach others, Frank has paid his debt in full. In a time when lawyers who fight for those who can't fight for themselves are being villainized, Frank Bailey is a shining example of what a trial lawyer really is... a voice for those who can't speak for themselves.

Janelle House of the Baxter Bulletin captured the essence of Frank's story. I share excerpts of this story below (with her permission) in the hopes that his story will inspire you as much as his example inspires me.

Janelle House, Baxter Bulletin Managing Editor

Since opening a tiny law office on the Mountain Home square more than 30 years ago, until he built his current office, Bailey has been advocating for those who have suffered serious — often fatal — injuries through others' wrongdoing.

"Mr. Bailey is a shining example for our colleagues," said ATLA president Paul Byrd.

Bailey says working on the farm in his youth taught him a lot about farm life and country life. And attending band camp at Fayetteville sold him on attending University of Arkansas.

Once at U of A, he roomed with law students and was determined to follow them into law school. But those studies were interrupted when he was drafted into the Army and eventually shipped to Vietnam in 1970. Ultimately assigned to the 101st Airborne Division, he landed at Camp Eagle — where he could see North Vietnam from his post.

Surviving the war, he returned home, finished law school, and backpacked around Europe before opening his law office in Mountain Home in 1974.

From a tiny office inside a space that Nature's Way health food store now occupies, he opened his practice.

He recalls those days when his secretary used an electric typewriter and carbon paper to draft pleadings. If multiple copies were required, they used the copy machine at a nearby real estate office.

When he was able to earn $5,000 in settlement money for his clients in his first medical malpractice case, he found his calling. Since then, Bailey has gone after defendants as large as Ford Motor Company to keep the rights of those who have been hurt intact.

In that case, he represented a little girl who became a paraplegic after the car in which she was riding crashed head-on into another car. He discovered the thin metal strip that keeps the trunk contents from slamming into passengers in front-end crashes — which he described as flimsy as a shower rod — failed.

Ford paid substantial damages in the case.

But Bailey isn't completely satisfied with the results. He says recent tort reform in the state has changed joint and several liability, which means Ford was let off the hook from paying the entire tab. Instead, the other driver was found to be primarily at fault, but his paltry insurance coverage couldn't begin to pay the damage it was assessed.

For Sach Oliver, who joined Bailey & Oliver Law Firm two years ago, Bailey is a mentor and a friend.

"More than a law partner — he's my mentor," Oliver said. "He's taught me everything that I know.

"Frank is constantly learning," Oliver said. "(He) goes to his clients' homes to get to know their families. He tries to place himself in their shoes to learn what they're going through. That motivates him to do the best job he possibly can for them in their time of need.

"The whole premise behind what he does is upholding the constitution to insure injured people receive due process and proper compensation," Oliver said. "He's dedicated his life to this cause."

Indeed, Bailey says his most rewarding case was getting compensation awarded to a 4-year-old boy from Little Rock whose mother took him to their doctor four times complaining of a high fever. With little treatment other than mild antibiotics and reassurance that he would be fine, the boy's bacterial meningitis went untreated and he suffered severe brain damage.

"The next day he went into convulsions," Bailey said. "When he got to the hospital, you could see from the CTs of his brain that a quarter of it was gone.

"He was a beautiful child."

Bailey's hard work paid off for that family.

"We were able to get a substantial settlement," Bailey said. "Now his parents are able to do things like buy a new house: not a fancy house, but one that's all on one level. He couldn't climb the 15 steps to the front door.

"The sad thing is, he had so much potential," Bailey said, visibly moved by the memory. "He's a super kid."

"What people don't realize about him," said Barney Larry, who has known Bailey for more than 30 years, "he's a very tough lawyer in the courtroom, but he has a very soft heart. And, he really cares about doing the right thing."

Oliver says that's what makes Bailey a superb advocate for his clients.

"His main talent is to be humble and confident in the same stroke," Oliver said.

Bailey also has a passion for community service. He has served as president of Mountain Home Rotary and currently serves as president of Mountain Home Area Chamber of Commerce. He's also a member of Baxter Regional Hospital Foundation Advisory Board.

Gov. Mike Huckabee named him to serve as a special associate justice to the Arkansas Supreme Court three times. He is board-certified as a civil trial specialist by the National Board of Trial Advocacy and is a diplomate of the National College of Advocacy. The MidSouth edition of Super Lawyers listed Bailey in the field of personal injury. Martindale-Hubbell, widely considered the most authoritative resource on the legal profession for more than 100 years, rates Bailey "AV," its highest rating. He's also been selected to be included in the 2008 and 2009 editions of Best Lawyers.

Bailey is married to Pat Bailey, vice chancellor at Arkansas State University Mountain Home, and son Frank is studying at Fayetteville to be a baker.

Originally posted at InjuryBoard by Ryan Scott

FDA Warning Against Diet Pill Long Overdue

Ryan Scott — Mon, 04 May 2009 17:41:23 GMT

According to the Associated Press, the Food and Drug Administration said the maker of the dietary supplement "Hydroxycut" has agreed to recall 14 of its products. Available in grocery stores and pharmacies, Hydroxycut is advertised as made from natural ingredients. At least 9 million packages were sold last year, according to the FDA.

Dr. Linda Katz of the FDA's food and nutrition division said the agency has received 23 reports of liver problems, including the death of a 19-year-old boy. The teenager died in 2007, and the death was reported to the FDA this March. Other patients experienced symptoms ranging from jaundice, or yellowing of the skin, to liver failure. One received a transplant and another was placed on a list to await a new liver.

Dietary supplements aren't as tightly regulated by the government as medications. Manufacturers don't need to prove to the FDA that their products are safe and effective before they can sell them to consumers. But regulators monitor aftermarket reports for signs of trouble, and in recent years companies have been put under stricter requirements to alert the FDA when they learn of problems.

I have had my own experience with this over-the-counter "supplement." Hydroxycut was a new (and very popular) supplement when I was in high school. The girls used it to lose weight, and most of the guys who used it did so to make weight for a sport or to get "geeked up" before a practice or game. I tried the drug a couple of times, but I didn't like the way I could feel my heart race. It gave me the jitters.

It seems to me that you don't have to be a doctor to realize that a pill that speeds up your heart rate to the point it is notiecable should be so easy to get and so loosley regulated. Because of its "supplement" status, fifteen-year-olds were using Hydroxycut products. I'm sure the manufactures will note that the warning label says "adults only," but, when has that stopped any teenager?

It is high time we close the giant "supplement loophole" and protect ourselves from the unregulated, immoral corporations that will package poison to make a buck.

Here is a list of the recalled items:

— Hydroxycut Regular Rapid Release Caplets— Hydroxycut Caffeine-Free Rapid Release Caplets — Hydroxycut Hardcore Liquid Caplets — Hydroxycut Max Liquid Caplets — Hydroxycut Regular Drink Packets — Hydroxycut Caffeine-Free Drink Packets — Hydroxycut Hardcore Drink Packets (Ignition Stix) — Hydroxycut Max Drink Packets — Hydroxycut Liquid Shots — Hydroxycut Hardcore RTDs (Ready-to-Drink) — Hydroxycut Max Aqua Shed — Hydroxycut 24 — Hydroxycut Carb Control — Hydroxycut Natural

Source: U.S. Food and Drug Administration

Originally posted at InjuryBoard by Ryan Scott

Focus Groups are the Key to Trial Success

Sach Oliver — Tue, 28 Apr 2009 18:15:49 GMT

Focus Groups are the Key to Trial Success

Our firm conducts at least one focus on every case we have in litigation. In our firm, that is almost every case. Our focus groups consist of gathering 12-18 people from the community where the lawsuit is filed and presenting the case to those mock jurors. Then the jurors give us feedback for trial preparation.

If a case is worthy of trial, it is worthy of a focus group. Clients and trial lawyers have one shot at winning…the TRIAL. In almost every aspect of life where winning and losing are at stake, practice is necessary. Do you think the Pittsburg Stealers practiced and played other football games before they won the Super Bowl this past year? Absolutely, hundreds of times. So why would you not expect a trial attorney to practice the case or test the case with a jury before the big “super bowl” trial?

Our firm also conducts focus groups for outside firms. Other firms hire us to conduct a focus group on their case. We have done focus groups for both sides, plaintiff and defense. When you (clients and lawyers) realize that the jury governs the entire case from the beginning, through discovery, and up to trial, you will want a focus group for your case.

Originally posted at InjuryBoard by Sach Oliver

Cheap Drywall May Cause Health Problems

Ryan Scott — Wed, 15 Apr 2009 17:50:01 GMT

According to the Associated Press, at the height of the U.S. housing boom, when building materials were in short supply, American construction companies used millions of pounds of Chinese-made drywall because it was abundant and cheap.

That decision has cost many homeowners money... and now, according to AP research, it could be costing them their health. Brian Skoloff of Associated Press reports that dozens of homeowners in the Southeast have sued builders, suppliers and manufacturers, claiming the very walls around them are emitting smelly sulfur compounds that are poisoning their families and rendering their homes uninhabitable.

A Florida Department of Health analysis found the Chinese drywall emits “volatile sulfur compounds,” and contains traces of strontium sulfide, which can produce the rotten-egg odor and reacts with air to corrode metals and wires. But the agency says on its Website that it “has not identified data suggesting an imminent or chronic health hazard at this time.”

However, Dr. Patricia Williams, a University of New Orleans toxicologist said she has identified highly toxic compounds in the drywall, including hydrogen sulfide, sulfuric acid, sulfur dioxide and carbon disulfide. Prolonged exposure to the compounds, especially high levels of carbon disulfide, can cause breathing problems, chest pains and even death; and can affect the nervous system, according to the CDC.

Proven, or not, I doubt that many homeowners and potential home buyers would feel comfortable sleeping with their family in a home that could be a toxic prison.

Originally posted at InjuryBoard by Ryan Scott

Spinal Cord Injury

Sach Oliver — Wed, 08 Apr 2009 17:45:33 GMT

Spinal Cord Injury

I am reading a very informative and interesting book about spinal cord injuries. The book is titled Spinal Cord Injury: Functional Rehabilitation. The author is Martha Freeman Somers with the Department of Physical Therapy, Duquesne University in Pittsburgh, PA. My wife, Codi, is an occupational therapist and this was one of her text books in OT school. I bet she never thought she would marry a man so nerdy that he would read her college text books. Some folks just luck out.

Back on point, this book is perfect if you want to learn about spinal cord injuries. It paints the picture of what it takes for spinal cord injured patients to get back to a functional life. I plan on blogging about different topics throughout the book over the upcoming weeks.

As an introduction, every year almost 10,000 people receive a spinal cord injury in the United States.[1] The causes for spinal cord injuries are below:[2]

1. Motor vehicle accidents: 37.2%
2. Acts of violence: 26.8%
3. Falls: 21.0%
4. Sports injuries: 7.1%
5. Other causes: 7.9%

[1] National Spinal Cord Injury Statistical Center.(1999). Spinal Cord Injury: Facts and Figures at a Glance. Available from: www.spinalcord.uab.edu/docs/factsfig.htm

[2] Id.

Originally posted at InjuryBoard by Sach Oliver

Effective Leadership Requires “eq” Not Iq

Sach Oliver — Fri, 20 Mar 2009 12:27:25 GMT

EFFECTIVE LEADERSHIP REQUIRES “EQ” NOT IQ

Most everyone knows what an IQ is, but many do not have any idea what an “EQ” is, even though it is nearly impossible to be an effective leader without it. EQ first caught my attention is a great book, Emotional Intelligence: Why it can matter more than IQ, by Daniel Goleman. Then I read an article by Jamie S. at Northwest Arkansas News and I thought about this blog.

“EQ” is emotional intelligence, or having the ability to manage one’s emotions and to understand and respond to the emotional needs of others. William Chew, CFO of Bama Food, Inc. and an expert on emotional intelligence spoke about this issue recently at a local college.

Chew told the crowd that a common reason for leaders to fail is their lack of emotional strength. Chew stated that “IQ gets you to the party, but it doesn’t keep you there,” he said. “IQ gets you to the interview, but EQ gets you the job.”

Chew outlined the five components essential to having “EQ”:

Self-awareness: Understanding your own moods and emotions, as well as their effect on others;
Self-regulation: Being able to control and redirect your own disruptive impulses and moods, as well as being able to think before acting;
Motivation: The propensity to pursue goals with energy and persistence and having a passion for work that goes beyond gaining money and status;
Empathy: The ability to understand the emotional makeup of others, as well as having the skills to treat people according to their emotional reactions; and
Social Skills: A proficiency in managing relationships and building networks, as well as the ability to find common ground with people and build support.

Chew also said that having a strong emotional intelligence is not only important in business, but in one’s personal life.

This post written by: Leona Crowe, Legal Assistant to Sach Oliver

Originally posted at InjuryBoard by Sach Oliver

Fatal Two-Vehicle Accident on Highway 12 and Regional Boulevard

Sach Oliver — Wed, 18 Mar 2009 12:19:57 GMT

Fatal Two-Vehicle Accident on Highway 12 and Regional Boulevard

I have been meaning to blog about this location for several weeks now. My wife and I live in Cave Springs and we travel highway 12 often. Every time we round the curve right before the turnoff to the airport I always think this is a little bit dangerous. Also, when you’re coming north from the airport, every time I turn onto 12 from Regional Boulevard, I think I hope no one pops around that curve going very fast. It is a tough area for driving. As our area grows, more and more people will be going to the airport and leaving the airport. We should all slow down a little in that area so another wreck doesn’t happen.

The details of this wreck are truly sad. According to the Arkansas Democrat Gazette, Steven M. Homewood, age 52 , of Huboldt, Kansas was killed after his northbound truck ran a stop sign at Arkansas 12 and Regional Blvd. and struck the passenger side of a car driven by George K. Black of Westville, Oklahoma. The vehicles both overturned. Mr. Black and his passenger Karen J. Heath were taken to Northwest Medical Center – Bentonville. Apparently, Ms. Heath was in critical condition.

Originally posted at InjuryBoard by Sach Oliver