Brain injuries (continued)

December 31, 2009 @ 02:19 PM -- by

Sometimes, the changes in personality in the brain-injured person may be subtle. Thus, the correct diagnosis and assessment of long-term impact may be very difficult to determine in those cases where the injury does not appear to be that severe. As such, the neurosurgeon or neuropsychologist may need to rely on input by friends and family.

Brain injuries

December 21, 2009 @ 04:24 PM -- by

Traumatic brain injury lawyers need to understand that injuries to the head often result in physical, mental and psychosocial damages. This is not the same as "post-traumatic stress disorder." A true head injury action concerns trauma to a person’s head. The damage to the person’s head can affect not only a person’s thinking, but also their emotional condition. Some commentators have labeled the head injury epidemic as the "silent epidemic".

Discovery issues in trucking accident cases

December 16, 2009 @ 02:36 PM -- by
Tagged with: Trucking Accident
Carriers in trucking accident cases often hire biomedical "experts" in defending a case. These supposed experts are hired to look at photographs of the vehicle and the plaintiff’s medical records and state that it was physically impossible for the plaintiff to have been injured severely in the wreck. These "expert opinions" are the hallmark of junk science. They make untold millions testifying for insurance companies. Their conclusions and opinions are often completely unsupported by the facts of the case. When these "experts" appear in trucking accident cases, it is very important to try to discredit and disqualify them. Juries need to know their biases so they can properly determine a case. Often these experts are both physicians and engineers, so the jury gives them great credence. In truth and fact, they are paid assassins to confuse the jury. It is extremely important in trucking accident cases to get information regarding the financial ties b

Mesothelioma and corporate mergers

October 02, 2009 @ 05:04 PM -- by
Tagged with: Mesothelioma

Many cases in Texas have discussed the litigation of mesothelioma and asbestos-related physical injuries. For any actions filed after June 3, 2003, the successor asbestos-related liabilities for a corporation are limited to the fair market value (FMV) of the total gross assets of the transferor at the time of the consolidation or merger. The corporation has no responsibility for successor asbestos-related liabilities above this limitation. This is a very important law, as mesothelioma claims (please check our "Mesothelioma FAQ" section for more information) and their defense are very expensive.

The Texas Civil Practices and Remedies Code ("CPRC") defines an asbestos claim as follows:

"Asbestos claim" means any claim, wherever or whenever made, for losses, damages, contribution, indemnity, or other relief arising out of, based on, or in any way related to asbestos, including:

(1) property damage caused by the installation, presence, or removal of asbestos;

(2) the health effects of exposure to asbestos, including and claim for death or personal injury, mental or emotional injury, risk of disease or other injury, or the costs of medical monitoring or surveillance; and

(3) any claim made by or on behalf of any person exposed to asbestos, or a representative, spouse, parent, child, or other relative of the person.

A "successor" is a corporation which incurs or assumes, or has incurred or assumed, successor asbestos-related liabilities. A "transferor" is a corporation from which successor asbestos-related liabilities are or were incurred or assumed.

For purposes of the CPRC, a corporation can establish the FMV of total gross assets through any method reasonable under the circumstances, including by reference to the going concern value of the assets or to the purchase price attributable to or paid for the assets in a fair (arm’s length) transaction. If there is no readily available information through which the FMV may be determined, reference to the value of the assets recorded on a balance sheet is acceptable.

Our firm represents mesothelioma clients in Corpus Christi, Houston, Galveston, Brownsville, Laredo, and throughout Texas. Contact Galveston mesothelioma lawyer Scott Nelson if you need help with a mesothelioma claim.

Products liability (continued)

October 02, 2009 @ 03:41 PM -- by
Tagged with: Product Liability
Expert evidence is required for product liability (defective products) actions involving toxic products. Plaintiffs must prove their case by a preponderance of the evidence. As such, liability will not be found in products liability cases when scientifically reliable evidence is not available. The offering party must show the reliability of the expert evidence. Epidemiological evidence is often used in toxic tort cases. Epidemiological studies examine existing populations in an attempt to determine whether there is an association between a particular condition or disease and a factor which is suspected of causing that condition or disease. When a plaintiff uses epidemiological studies to prove specific causation, the plaintiff must show that he is "similar to the individuals in the study. A court must determine whether the epidemiological is reliable before a plaintiff or defendant may use the evidence to support the expert’s opinion. The expert has to identify the particul

Products liability

October 02, 2009 @ 02:45 PM -- by
Tagged with: Product Liability

Generally speaking, "products liability" (or defective products) refers to the liability of a manufacturer, seller, or other person or individual responsible for placing a product in the stream of commerce for property damage or personal injuries that the product caused. Although manufacturers of products that harm or injure consumers are liable for injuries, they are not insurers of the safe use of a product.

A manufacturer’s duty to provide an appropriate warning is virtually absolute for products which contain dangerous or toxic ingredients which are not obvious to the typical user. Further, the failure to provide a warning constitutes negligence. Moreover, it may even be negligence in failing to label as toxic a product with a known toxicity. In deciding whether there is a duty to warn, a supplier or manufacturer must consider the common knowledge held by foreseeable users, as well as whether the warning would reach users.

If a product’s manufacturer knows that when there is a severe reaction to the product, the person will die without an antidote, and the need for the antidote would not be known to an ordinary purchaser, a label is inadequate if it only states that if an allergic reaction sets in, the product should be discontinued.

Under the Texas Civil Practices and Remedies Code, a product manufacturer or seller is not liable if:

(1) the product itself is inherently unsafe and it is common knowledge in the community that the product is unsafe; and

(2) the product is a common consumer product intended for personal consumption, such as alcohol, sugar, castor oil, butter and tobacco.

There are several kinds of products liability actions. These include manufacturing defect, design defect and marketing defect (such as the failure to warn of a toxic product). To prove that a product is defective, it must be shown that the product was unreasonably dangerous in construction, in design, or because inadequate instructions or warnings were provided.

Our firm represents products liability clients in Corpus Christi, Galveston, Brownsville, Laredo, and all of Texas. Contact Corpus Christi defective product attorney Scott Nelson if you need help with a defective product lawsuit.

Survival actions

October 01, 2009 @ 05:45 PM -- by
Tagged with: Wrongful Death
Survival actions are often brought along with wrongful death actions. A personal injury action does not abate, or end, because of the death of the injured party or the person causing the injury. When the injured party dies, the action survives and is then brought in favor of the deceased’s heirs, estate and legal representative. Just as with any other claim, a plaintiff bringing a survival action on behalf of a decedent must have both legal capacity to sue and standing. An heir has capacity to bring a survival action when the decedent’s personal representative either will not or cannot bring the suit, or when the representative’s interests are different or antagonistic to that of the estate. There is not a survival action for the death of a fetus. A child must be born alive for there to be a survival action. However, parents have various remedies under the Wrongful Death Act for the death of a fetus. Additionally, damages relating to the mother’s mental anguis

Wrongful death damages (continued)

October 01, 2009 @ 04:08 PM -- by

A decedent’s minor child may recover an money damages representing the amount the decedent would reasonably have contributed to the child’s maintenance and "the value of the services which the (deceased parent) in reasonable probability would have rendered them in training, advising and educating them." Similarly, the adult children of a decedent may receive damages for the loss of expected contribution from a parent. There is no need to show evidence of exact amounts of money received or expected to be received form the decedent.

Wrongful death damages

September 30, 2009 @ 05:46 PM -- by

A jury may award as compensation for a wrongful death the damages that it finds proportionate to the injury or harm sustained by the statutory beneficiaries because of the death. A jury will also divide and apportion the award among the beneficiaries enumerated by statute. The damages will be determined as of the date of death. In an action for a child’s death, the child’s parents may recover the pecuniary (or dollar value) of the child’s services from the time of death until the child reaches the age of 18. However, the cost of the child’s education, support and maintenance is subtracted.

Wrongful death actions (continued)

September 30, 2009 @ 04:33 PM -- by

Under the Wrongful Death Act, a surviving spouse is a statutory beneficiary. A surviving common-law spouse is also considered to be a statutory beneficiary. However, a surviving putative spouse is not considered to be a statutory beneficiary.

Wrongful death actions

September 22, 2009 @ 04:09 PM -- by

Two separate actions may be brought when wrongfully inflicted injuries lead to a person’s death. The first one is based on the Wrongful Death Act. This act provides a statutory cause of action for the surviving spouse, children, and parents of the deceased. The act is intended to compensate them for the losses suffered as a result of the wrongful death. There is no common law wrongful death cause of action.

Standards of care (continued)

September 22, 2009 @ 02:57 PM -- by
Tagged with: Trucking Accident

Although the duty owed to children is generally the same as that owed to adults, the exercise of ordinary care to a child may require different conduct than would be required to an adult. This different conduct may be required because the risk of injury to a child may be greater than that posed to an adult by the same act or condition.

Common carriers, such as operators of buses, taxis and streetcars, are charged with a high degree of care with respect to their passengers. Generally speaking, common carriers have to protect their passengers from injuries by strangers or intruders. The standard has been defined as that used by a very cautious, prudent and competent person under the same or similar circumstances. The reason for holding common carriers to this higher standard of care is that passengers need to feel safe while traveling. In determining whether an entity is classified as a common carrier, courts look to the entity’s primary function, and it must be determined whether the business of the entity is public transportation or whether the transportation is simply incidental to the entity’s primary purpose.

"Good Samaritans" are held to a lower standard of care. For instance, if a bystander attempts to help an injured person in a oil rig accident, construction accident, or trucking accident, he may only be held liable for negligence if he is wantonly or willfully negligent. The reason for the good Samaritan statute is to lower the standard of care to encourage both medically trained personnel and laypersons to render aid in emergency situations. Thus, the statute provides a waiver for actions constituting ordinary negligence. For a person to qualify for immunity from civil damages under this statute, a person who provides care in an emergency situation must show that he would not ordinarily receive payment under the circumstances under which the emergency care was provided.

Contact Corpus Christi personal injury lawyer Scott Nelson if you have been injured in a trucking accident and need representation.

Standards of care

September 21, 2009 @ 06:03 PM -- by
Tagged with: Product Liability

The standard of care which is owed to a particular individual depends on several factors, such as the circumstances of the particular event or whether a special relationship exists. The standard of care is sometimes a consideration in product liability and defective product cases.

For negligence purposes, the degree of care required, or the steps that would be seen as reasonable, depends upon the danger involved. Courts have found varying standards of care, such as ordinary and reasonable standard of care or a professional standard of care (for professional negligence cases).

The general standard of care to test the question of negligence is the common experience of mankind, and generally implies the want of that care and diligence which an ordinary prudent individual would use to prevent injury under the particular circumstances. To establish negligence liability, the plaintiff must prove that the defendant did something which an ordinarily prudent person exercising ordinary care would not have done under the same circumstances, or that the defendant did not do that which an ordinarily prudent person in the exercise of ordinary care would have done under the circumstances. Ordinary care is defined as that degree of care that would be exercised by a person of ordinary prudence under the same (or similar) circumstances.

Another duty of care is "due regard," which is different that ordinary care. Due regard is a midlevel or intermediate standard imposing a duty less than ordinary care, but greater than a simple lack of recklessness. In such a case, although a person does not have a duty to act, if one voluntarily acts, he must do so with due care and can be held liable for negligence.

Professionals, such as attorneys, architects, accountants, dentists, physicians and engineers must exercise that degree of skill, knowledge and judgment possessed by members of their respective professions. For instance, in the context of engineering services, professional negligence means doing that which an engineer of ordinary prudence in the exercise of ordinary care would have done in the same or similar circumstances (or, in the exercise of ordinary care, would not have done under the same or similar circumstances).

Contact Corpus Christi product liability lawyer Scott Nelson if you have been injured by a defective product and need representation.

Damages

September 17, 2009 @ 05:20 PM -- by

As a Starr County personal injury lawyer, with offices in Corpus Christi, I am very familiar with damages awards.  Compensatory damages may be awarded in negligence actions. This may also include damages for mental anguish, when there are also physical injuries. Damage awards can be quite large in serious personal injury cases and catastrophic accidents.

Additionally, exemplary or punitive damages may be awarded, such as in the case of gross negligence where it can be shown that the defendant had subjective effectual awareness of an extreme risk created by the defendant’s conduct. 

Superceding cause

September 17, 2009 @ 04:19 PM -- by
Tagged with: Trucking Accident

A "superceding cause"can be defined as an act by a third person or other force which, by its intervention, prevents an actor from being held liable for harm or injury to another, even though the actor’s antecedent negligence is a substantial factor in causing the harm.

To determine whether an intervening force is a superceding cause of harm or injury to another, and therefore, the proximate cause of the injury, courts consider the following factors:

(1) the fact that its intervention brings about harm or injury which is different from that which would have otherwise resulted from the actor’s negligence;

(2) the fact that the intervening force’s operation or the consequences thereof appear after the fact to be extraordinary, rather than ordinary or usual, in view of the circumstances existing at the time of its operation;

(3) the fact that the intervening force’s operation is due to a third person’s act (or failure to act);

(4) the fact that the intervening force operates independently of the situation which was created by the actor’s negligence, or, conversely, is or is not a normal result of such situation;

(5) the degree or amount of culpability of a third person’s wrongful act which actually sets the wrongful act into motion; and

(6) the fact that the intervening force is due to a third person’s act which is wrongful toward the other and, therefore, subjects the third person to liability to the actor.

This situation may occur in trucking accident or car accident cases. In one case, the Beaumont Court of ruled that a borrower’s act of loaning a borrowed car to a driver in exchange for crack cocaine was a superceding cause of injury, where the owner did not know that the borrower had a propensity to loan out the car and the borrower had returned the car safely the week before.

Contact Corpus Christi personal injury lawyer Scott Nelson if you have been injured in by another’s negligence and need assistance.

Proximate cause (continued)

September 17, 2009 @ 02:36 PM -- by

Cause in fact is an element of proximate cause which means that the negligent act or omission was a substantial factor in bringing about the harm or injury, and without such negligence, the injury would not have occurred. A consideration in proximate cause is foreseeability. The test for foreseeability is whether the actor, as a person of ordinary intelligence, should have foreseen the danger to others created by the actor’s negligent act.

The specific or particular act need not be foreseen, but the injury must be of such general character as might reasonably have been anticipated. Timing is also a consideration. For negligence to be a proximate cause of an injury, the injury must have been foreseeable by the acting wrongdoer at the instant of the wrong.

Sometimes there is more than one proximate cause of the in juries or harm inflicted. Thus, there may be concurrent causes of an accident. This sometimes occurs in oil rig accidents or other catastrophic accidents. A "concurrent act" cooperates with the original act in b ringing about the harm or injury and does not cut off the liability of the original actor. Thus, all actors who contribute to an injury and that proximately caused such injury are liable. Just because another’s negligence is foreseeable does not mean that the chain of causation is broken. However, where the negligence of one party constitutes a new and independent cause, not connected form the original cause, which intervenes and breaks the chain of sequence, becoming itself the direct and proximate cause of the harmful event, then the parties are not liable for concurrent causes. The new and independent cause will then be seen as an intervening cause and thus will not be the proximate cause of the event.

Contact Corpus Christi personal injury attorney Scott Nelson if you or a loved one has been injured by another person’s negligence.

Proximate cause

September 15, 2009 @ 07:01 PM -- by
Tagged with: Personal Injury
Many personal injury cases have a negligence cause of action. In a negligence case, the plaintiff must prove that the breach of a duty owed by the defendant to the plaintiff was both the actual and proximate cause of the injuries sustained by the plaintiff. Two distinct concepts are embraced by proximate cause: cause in fact and foreseeability. The doctrine of proximate cause establishes the line of legal causation and ultimately involves weighing human conduct and various policy considerations. Proximate cause cannot be satisfied by guess, speculation or mere conjecture. The evidence must ultimately show that the negligence was the proximate, and not simply the remote, cause of the injuries. The conclusion must be that the injury was a natural and probable result of the negligence. To establish cause in fact in a negligence action, a person must show that the act or omission was a substantial factor in bringing about the injuries and, without it, the harm or injuries would not have

Negligence (continued)

September 15, 2009 @ 06:10 PM -- by
Tagged with: Oil Rig Accident

Generally speaking, a person is under no duty to aid another in distress. As a matter of law, it has been held that a bystander who does not create dangerous situation is not required to help another, to become a "Good Samaritan", and to prevent injury to others. If a person has only mere knowledge of a dangerous situation, the only duty is a moral duty to warn or render aid (and no legal duty). Additionally, a person has no legal duty to protect another person from the criminal acts and activities of a third person.

However, in some situations, negligence liability may be imputed to a nonactor because of some special relationship between the defendant and the third person. These special relationships may include employer and employee (perhaps in an oil rig accident scenario), driver and passenger, owner and driver, bailor and bailee, partnership, or joint enterprise. For instance, if the party in charge of a dangerous person knew or reasonably should have known of the dangers that person posed, then the persons foreseeably exposed to such danger may be owed a duty of care.

As previously noted, in order to recover in a negligence action, the plaintiff must establish both the existence of a duty and the violation, or breach, of that duty by the defendant. Someone can breach a duty owed by acting or doing something (active negligence), or by not doing something that should have been done (passive negligence). For example, in construction accident cases, active negligence may be the dropping of scaffolding material on a worker below.

The duty owed under the particular situation is also determined by the particular situation involved. The duty owed to a foreseeable plaintiff has been held to be different from the duty owed to an unforeseeable plaintiff. Certain plaintiffs, such as rescuers, may be owed a higher degree of care than a foreseeable plaintiff.

Contact Brownsville personal injury attorney Scott Nelson if you have been injured by somebody else’s negligence and need experienced counsel.

Negligence (continued)

September 10, 2009 @ 05:46 PM -- by
Tagged with: Refinery Accident
Of all the factors used in determining whether a defendant owes the plaintiff a duty, foreseeability of the risk is the foremost and dominant consideration. "Foreseeability" requires that a person of ordinary intelligence should have anticipated the danger created by a negligent act or omission. While the particular accident does not have to be foreseen, the injury must be of such a general character as might have been reasonably anticipated. Where a person negligently creates a situation, it becomes that person’s duty to do something about it to prevent injury to others if it reasonably appears or should appear to him that others may be injured because of the situation. This situation often occurs in construction accident or refinery accident cases where a company creates a dangerous situation. An affirmative duty may arise in a situation where a warning should be given to prevent injury, such as for a dangerous product, or where a person should control someone known

Negligence

September 10, 2009 @ 05:09 PM -- by

"Negligence" has been defined by the Texas Supreme Court as the doing of that which a person of ordinary prudence would not have done under the same or similar circumstances, or the failure to do that which a person of ordinary prudence would have done under the same or similar circumstances. Negligence is a very common theory of liability included in a personal injury claim. For instance, many oil rig accident and construction accident cases include a negligence claim.

 

Am I covered under the Jones Act?

September 09, 2009 @ 06:07 PM -- by

As a Corpus Christi Jones Act lawyer, I am often asked about the use and origin of this statute.  Maritime common law failed to provide a seaman a cause of action against his employer for damages caused by the negligence of co-employees. Congress remedied this by adopting the Jones Act, which states, in part:

 

Any seaman who shall suffer personal injury in the course of his employment may . . . maintain an action for damages at law . .. And in such action all statutes of the United States modifying or extending the common law right or remedy in cases of personal injury to railway employees shall apply . . . . 46 U.S.C.A. Section 688.

 

Unseaworthiness

September 04, 2009 @ 03:20 PM -- by

A vessel and its operator owe members of the vessel’s crew the duty to furnish a seaworthy vessel (one that is reasonably fit for its intended use). This duty is owed by the operator of the vessel. Usually the shipowner is both the operator of the vessel and the seaman’s employer.

To be considered seaworthy, the vessel, its crew and appurtenances and operation must be reasonably fit for the vessel’s intended purpose. The standard is not absolute perfection. "Reasonably fit" is to be determined by a "reasonable man" standard.

Some conditions may be unseaworthy under some conditions but not in others. Ice on a vessel in a frigid climate while the vessel is underway may not be unseaworthy, but the same conditions may make the vessel unseaworthy if the vessel is in a warmer climate or is in port.

 

Maintenance and cure

September 02, 2009 @ 04:31 PM -- by

The remedies of maintenance, cure and unearned wages are based on the obligation of the employer of seaman to provide suitable quarters, provisions and medical care to seaman while they are aboard the vessel. An employer must provide maintenance and cure to a seamman who suffers injury or illness while "in the service of" his or her ship. The remedy is similar to worker’s compensation, as liability for maintenance and cure is imposed upon the employer without regard to fault. Unlike most worker compensation schemes, benefits are limited to the seman’s medical expenses (cure) until he reaches maximum medical improvement for his condition, wages only to the end of the voyage, and a small sum for living expenese (maintenance) during the period of treatment and convalescence.

Who is a seaman?

September 02, 2009 @ 03:29 PM -- by

As a Brownsville Jones Act maritime lawyer, I understand what persons will be legally defined as "seamen".  The rights and remedies available to an employee against his employer and the vessel on which the employee is working are determined by the employee’s "status." The employee’s status may be (1) seaman, (2) a nonseaman maritime worker, or (3) a nonmaritime worker. Two of the seaman’s major claims-negligence against the employer and unseaworthiness against the vessel-are governed by tort principles. The other major claim, maintenance and cure, is similar to worker’s compensation but is governed not by statute, but by judicially developed principles of maritime law. 

The definition of "vessel" under maritime law is extremely important

August 27, 2009 @ 03:42 PM -- by

As an Aransas Pass Jones Act maritime lawyer, I try to understand the various maritime definitions.  Many times, whether a matter or claim is "in admiralty"depends on whether it has a sufficient relationship to a "vessel." For instance, an injured seafarer may qualify as a "seaman" only if his employment has the requisite connection with a "vessel." This seaman status allows the seaman to gain the benefits of maintenance and cure, the Jones Act, and the warranty of seaworthiness. 

Navigable waters

August 26, 2009 @ 05:30 PM -- by
Tagged with: Maritime Law
The United States Constitution provides for federal judicial power extending to "all cases of admiralty and maritime jurisdiction." The federal courts received admiralty jurisdiction from Congress in the Judiciary Act of 1789. In general, admiralty jurisdiction extends to matters occurring on navigable waters involving some aspect of maritime commerce, and contractual matters which directly affect maritime commerce. "What are navigable waters" becomes the next question. United States admiralty courts recognize jurisdiction over maritime activity occurring on all waters, whether or not connected to the sea, which are used or can be used in interstate or foreign commerce, either usable in their natural state or which can be made navigable with a reasonable expenditure. One often cited definition, as stated by the Supreme Court in The Daniel Ball, 77 U.S. 557, 563 (1871), is that they "form in the ordinary condition by themselves, or by united with other waters,

Origins of Maritime Law

August 10, 2009 @ 04:15 PM -- by
Tagged with: Maritime Law

Admiralty, or maritime law, is one of the oldest bodies of law in  the world.  Many experts believe it began in the various countries bordering the Mediterranean Sea.  A special body of law had to be created to deal with the many problems which developed between different countries. 

A typical problem in ancient times went like this:  Ship from Country A has seafarers from Country A and B and Cargo from Countries C and D.  Some of the Cargo is damaged while being offloaded in Country E.  The other Cargo is held by seafarers from Country B who haven't been paid for 6 months.   Five countries are involved with people speaking 4 different languages.  How do we get justice?  Who do we sue?  Where?

These problems led to the establishment of special courts in coastal cities to try to resolve these disputes.  These substantive rules were eventually codified in those courts.  Some of these codes were recognized in other ports.  As these codes developed, there eventually developed a body of general maritime law which was in many ways uniform among the seafaring nations.

This area of law eventually spread to England, which established maritime courts in English ports.  Eventually, these courts were replaced by courts under the jurisdiction of the Lord of the Admiralty.  The British then established in the American colonies vice-admiralty courts to which it granted power over maritime disputes.  This is how maritime law originally got to the United States.

 

Welcome to our new Blog.

May 04, 2009 @ 06:36 PM -- by
Tagged with: First Post Blog
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