Category Archives: Personal Injury

    Special Preservation of Evidence Issues in Trucking Litigation

    When a 3,000 pound economy car is struck at highway speeds by a fully loaded tractor-trailer weighing as much as 80,000 pounds, the results often are catastrophic for occupants of the passenger car. The massive weight disparity between large trucks and passenger vehicles increases the likelihood that occupants of a car, pickup or SUV will suffer debilitating injuries that necessitate spiraling medical expenses, prolonged treatment and/or rehabilitative therapy, and permanent mental and/or physical disability. Given the severity of injury associated with trucking accidents, victims of negligent truck drivers and indifferent commercial carriers rely on maximizing recovery in a personal injury claim to get their lives back on track. However, unique evidentiary challenges involved in trucking litigation make these personal injury lawsuits qualitatively different than typical car accidents. This blog post outlines some of the evidentiary issues that must be successfully dealt with in Mississippi trucking accident cases. These are as follows:

    • Falsification of Records: Although drivers operating big-rigs and the commercial carriers for whom truckers work are required to keep detailed records, these documents often are unreliable. Commercial drivers are required to maintain logbooks that provide evidence of hours of service (HOS), rest breaks, off-duty periods, and inspections. The most important function of this logbook is to monitor drivers who violate anti-fatigue rules. Since drowsy or fatigued driving is considered a leading cause of trucking accidents, these logs are designed to provide a record that can be reviewed in the wake of a collision. Unfortunately, these logbooks are so routinely falsified that they have become derisively referred to in the trucking industry as “lie books.” An experienced Mississippi trucking accident attorney will be very familiar with the industry practice of keeping two sets of logs or manipulating the information in such logs. Our Mississippi trucking accident law firm routinely investigates and conducts discovery to obtain evidence that can expose misleading driver logs, including receipts for gas, motel bills, on-board data recorder information (“black boxes”), and similar evidence to ferret out attempts to cover up HOS violations.
    • Preservation of Black Box Data: When an 18-wheeler is rushed back into service following a crash, the black box, which records critical information like speed immediately prior to a collision, sudden braking, shifting of gears, hours of service, vehicle location, maintenance issues, and more, can be erased. The black box on a tractor-trailer will have limited recording capability, such as thirty days of storage. When the memory becomes full, the black box typically records over prior data. This means that critical information might be erased if immediate action is not taken to ensure the black box data is preserved.
    • Repair of the Tractor-Trailer: When a big-rig is involved in a collision, the cab or trailer might have body damage. Alternatively, faulty brakes that have not been properly serviced might fail. If the trucking company or an independent repair facility fixes physical damage from the impact, an accident reconstruction expert might be deprived of important evidence that could be used to interpret fault, causation, or other issues. If faulty brakes or other malfunctioning components or systems are repaired, this can impede the plaintiff’s ability to prove negligent maintenance or vehicle defects.
    • Spoliation of Evidence: Our Mississippi big-rig accident attorneys address the issue of preserving black box data and post-crash damage by sending the commercial carrier a notice regarding spoliation. This letter will inform the commercial carrier that the truck and its black box are the subject of litigation. The notice will warn the trucking company that the evidence must be preserved in an unaltered condition. The letter will also warn that a violation of the notice will result in a motion for sanctions in the form of attorney fees and/or an adverse finding regarding an issue or the evidence at-issue.

    If you or someone you love has been injured in tractor-trailer collision, the compassionate and knowledgeable Mississippi trucking accident lawyers at Porter & Malouf, P.A. are here to help. Call our office today at (601) 957-1173 to schedule your free initial consultation.

     

    Tactics Used by Insurance Companies Handling Mississippi Auto Accident Claims

    If you are injured in an auto accident in Mississippi, the at-fault driver’s insurance company typically will handle the defense of the claim. Insurance companies routinely engage in a range of strategies that are designed to discourage injury victims. The objective of the insurer is to persuade an injury victim to abandon the claim or accept a lowball settlement. Insurance companies rely on a number of strategies that are effective against individuals who do not understand their legal rights and who do not have an experienced Mississippi personal injury attorney advocating for their interests. Said tactics are as follows:

    • Blaming the Injury Victim: Insurance companies routinely blame the plaintiff for causing the accident. This allegation might amount to an attempt to shift blame entirely to the injury victim or to contend that the plaintiff was partially responsible for causing the collision. While the injury victim might allege that he or she was T-boned by the other driver in an intersection, for example, the insurance company might argue that its insured had right of way. Because Mississippi is a “pure comparative negligence” state, the insurance company can reduce the amount of damages paid to an injury victim based on the percentage of fault assigned to the plaintiff. However, the comparative fault of the plaintiff will not bar recovery as long as the defendant is also at-fault.
    • Stalling Settlement to Impose Financial Distress: Insurance adjusters recognize that injury victims face significant financial pressure from mounting medical bills and time off work. Because an injury victim’s mortgage payments, auto payments, and other living expenses do not disappear following a serious car accident, families often experience increasing financial pressure the longer a personal injury claim drags on without resolution. The insurance company facing an unrepresented injury victim might bury a plaintiff in discovery requests and motions to force the plaintiff to settle for less than the value of the claim. The insurance company has deep pockets and increases its profits by keeping the money that would be paid out invested and earning a return. In other words, delay hurts an injury victim while benefiting the insurance company.
    • Reliance on Lack of Knowledge of Deadlines and Procedures: The legal process is governed by many technical evidentiary, procedural and substantive rules and standards. Insurance companies recognize that a party without legal representation has virtually no chance to navigate all of these rules without a critical misstep. Deadlines alone can pose a serious challenge for an unrepresented party. The statute of limitations requires a plaintiff to file a complaint within a certain period to avoid having his or her claim permanently barred. Since there is no “hardship exception” to the statute of limitations, failure to comply with this deadline will usually be a permanent bar to recovery regardless of the merits of the claim.
    • Reliance on Pre-Existing Medical Conditions: When liability of the insurance company’s insured is fairly obvious, the insurer will scour medical records for evidence of a pre-existing condition that might be blamed for any serious long-term disability or chronic pain. The insurance company might ask an injury victim to sign a medical release in an attempt to obtain evidence to dispute whether a serious injury was caused by the accident.

    These are just a few strategies that insurance companies use to reduce the amount they pay when settling a car accident claim. These tactics are much less effective against individuals represented by an experienced Mississippi personal injury attorney who will be familiar with these strategies and appropriate countermeasures. If you or someone you love has been injured in an auto collision, the compassionate and knowledgeable Mississippi auto accident accident lawyers at Porter & Malouf, P.A. are here to help. Call our office today at (601) 957-1173 to schedule your free initial consultation.

    Motorcycle Universal Helmet Laws Make a Difference

    Motorcycle enthusiasts usually have strong feeling about mandatory helmet laws. There are many riders who would never consider firing up their engine without strapping on a helmet. These motorcycle riders often support motorcycle helmet laws as a way to save lives, prevent catastrophic injuries, and reduce public health expenditures for crash-related injuries. Many other motorcyclists find mandatory helmet laws to be an unnecessary intrusion on a rider’s freedom of choice.

    As Mississippi personal injury attorneys who see the devastating impact of traumatic head injuries incurred in motorcycle accidents, our law firm urges riders of all ages to wear a helmet that meets Department of Transportation (DOT) and Snell Foundation standards. While we leave the political and philosophical debate to lawmakers, our Mississippi Motorcycle Accident Lawyers are firm proponents of the theory that the best decisions are those based on as much information as possible. This blog post provides some critical facts about motorcycle helmet safety and the impact of mandatory helmet laws.

    Universal helmet laws, which currently exist in only 19 states and the District of Columbia, have changed dramatically in recent times. Approximately, 28 other states have laws that mandate helmet use for some riders, such as riders under a certain age and/or riders that do not satisfy certain minimum insurance requirements. All states had universal helmet laws in the early 1970s until the federal government ceased tying federal funds for safety programs and highway construction to the existence of mandatory helmet laws. Unlike many other states, Mississippi continues to require all riders to wear a helmet when operating a motorcycle on public roadways.

    There is a wealth of data that demonstrates the potential risks associated with riding a motorcycle without a helmet. According to the National Highway Traffic Safety Administration (NHTSA), the number of crash-related motorcycle deaths on a per mile traveled basis is 26 times higher than the number of fatalities in car accidents. Approximately 4,668 people died and another 88,000 were injured in motorcycle accidents in the most recent year for which federal data is available. Serious head injuries are the most common cause of permanent disability and fatalities among motorcycle accident injury victims. The NHTSA reports that wearing a motorcycle helmet reduces the risk of dying in a motorcycle crash by 37 percent and reduces the risk of a traumatic brain injury by 67 percent.

    While there is little dispute that motorcycle helmets reduce the risk of injury or death for riders, some might question whether mandatory helmet laws actually increase helmet usage. A recent federal study suggests that helmet use nearly doubles in states with universal helmet laws compared to all other states. The researchers found that the helmet use rate in universal helmet law jurisdictions was 89 percent whereas the rate was only 48 percent in all other states. Further, increased helmet use in mandatory helmet law states and the effectiveness in helmets in preventing serious head injuries has resulted in improved rider safety. A number of states have reinstated their universal helmet laws since 1989 with the following results:

    • State                Decline in Motorcycle Accident Fatality Rates
    • Oregon:           33 percent
    • Texas:              23 percent
    • California:       37 percent
    • Nebraska:        32 percent
    • Washington:    15 percent
    • Maryland:        20 percent

    Whether you are a supporter of universal helmet laws or not, these statutes seem to be an effective way to improve motorcycle safety. If you or someone you love has been injured in a motorcycle crash, the compassionate and knowledgeable Mississippi personal injury lawyers at Porter & Malouf, P.A. are here to help. Call our office today at (601) 957-1173 to schedule your free initial consultation.

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    Victims Injured in Mississippi Drunk Driving Accidents Need a Personal Injury Attorney

    Alcohol impaired drivers cause approximately 10,000 traffic fatalities and hundreds of thousands of injuries per year despite the tragic reality that these types of accidents are entirely preventable. The emotional, physical, and financial hardships associated with traffic accident-related injuries are significant. However, the challenge of obtaining compensation for your injuries can magnify these adverse consequences. Alcohol impaired drivers predictably are more likely to be unlicensed, uninsured, and reckless. Motorists with driving under the influence (DUI) convictions face higher insurance rates if they can obtain insurance at all. According to the Transportation Research Board, approximately 50-75 percent of drunk driving offenders continue to drive even after their license is suspended, which means that they are also uninsured.

    Since the monetary recovery in most personal injury lawsuit settlements or judgments is obtained from the insurance company of one or more responsible parties, drunk drivers who are disproportionately uninsured are often “judgment proof.” This term is simply a reference to the basic truism that a favorable verdict by a judge or jury might be a hollow victory if an intoxicated driver has no way to pay. Vehicle occupants injured by intoxicated drivers in Mississippi car accidents often discover that recovering financial compensation for medical bills, lost wages, and other damages can be difficult, even if the other driver was passed out behind the wheel with a blood alcohol concentration (BAC) that is three times the legal limit.

    Our experienced Mississippi Drunk Driving Accident Injury Lawyers represent many people who must overcome the challenge of obtaining financial compensation from a drunk driver who is uninsured. Sometimes, the uninsured driver will own assets like a home with substantial equity or other property against which a judgment can be enforced.

    Given that a significant number of auto accidents caused by intoxicated drivers involve repeat offenders, these habitual drunk drivers typically do not have an abundance of personal assets against which a judgement can be enforced. If an asset search does not reveal that the drunk driver owns real estate or other property, we explore other potential defendants or sources of compensation, which might include the following:

    • Business That Served Alcohol to the Drunk Driver: Mississippi has a “Dram Shop” law that permits someone injured by a drunk driver to sue a business like a bar or restaurant that serves alcohol to a motorist who causes a crash while intoxicated.       The bar can be liable under Mississippi Code Annotated Section 67-3-73 if the business serves alcohol to a customer who is “visibly intoxicated.” In other words, a bar owner cannot bury his head in the sand and escape liability if he continues to serve alcohol to a customer who is, i.e., falling down drunk and slurring his words.
    • Other Motorists: Although the alcohol impaired driver might have been the immediate cause of a crash, multiple drivers often contribute to an accident. Our Mississippi personal injury law firm investigates the potential liability of other motorists that might have played a significant factor in causing a collision.
    • Vehicle Manufacturer: Each year, there are millions of vehicles sold to consumers with significant safety defects. When a vehicle has a defect that contributes to the collision, such as an ignition switch that spontaneously rotates to the off position, the automaker might be liable.
    • City/County/State: If some aspect of the roadway where the accident occurred was negligently designed, constructed, or maintained, this roadway defect might open the door to suing the public entity responsible for the road.
    • Uninsured Motorist/Underinsured Motorist (UM/UIM) Coverage of Injury Victim: If the other driver does not have insurance, flees the scene of the accident, or carries insufficient coverage, our law firm might be able to help you obtain compensation from your own UM/UIM coverage. Although many people assume that they do not need a lawyer to pursue a claim against their own auto insurance coverage, insurers increase their profits by underpaying claims.

    If you or someone you love has been injured in an auto collision involving a drunk driver, the compassionate and knowledgeable Mississippi motor vehicle accident lawyers at Porter & Malouf, P.A. are here to help. Call our office today at (601) 957-1173 to schedule your free initial consultation.

    Sources:

    http://www.madd.org/statistics/

    What Consumers Should Know about Suspected Link between Talcum Powder & Ovarian Cancer

    While most people are aware that there are many products that can cause serious injury to consumers, talcum powder might not be a product that immediately comes to mind. This product, which is used by millions of consumers, has been around for decades. Approximately 10,000 people per year are diagnosed with ovarian cancer linked to the use of baby power according to Harvard epidemiologist Dr. Daniel Cramer. If you or someone close to you has developed ovarian cancer after using talcum powder, you or your loved one might have a right to pursue a legal claim for compensation. Our law firm is currently evaluating defective product claims involving the development of cancer after using talcum powder.

    The first talcum powder lawsuit was filed against Johnson & Johnson (J&J) in 2013. Although a lawyer representing the company conceded that executives at J&J had been aware of a link between baby powder and ovarian cancer for years, the executives did not consider the risk significant enough to include a warning on the label of their product.

    The wave of lawsuits over the cancer risk associated with talcum powder is based in part on research showing as much as a 33 percent increase in the risk of developing ovarian cancer among women who use talcum powder. A meta-analysis published in Anticancer Research compiled data from 16 prior studies covering almost 12,000 women. The study found that perineal baby powder use increased the risk of developing ovarian cancer by 33 percent. The findings of this study have been confirmed by subsequent research. A study by Harvard epidemiologist Dr. Margaret Gates confirmed that weekly perineal dusting with talcum powder increased the risk of ovarian cancer by 33 percent.

    Talc is a substance extracted from the ground that contains magnesium, silicon and oxygen. When the substance is processed to be used by consumers, talc is ground into a powder. The powder is used to absorb moisture, which can be used to mitigate a rash or itching.

    Many lawsuits have been filed by consumers who have developed ovarian cancer after using talcum powder in the way and for the purpose intended by the manufacturer. When the powder is used by females in the genital area, the powder can penetrate the vagina and travel to the ovaries through the uterus and fallopian tubes.

    If you have used talcum powder and developed ovarian cancer, you might have a right to legal compensation. Our attorneys at Porter Malouf, P.A. have been representing those who suffer serious injuries throughout all of Mississippi and the Southeast.

    Call Porter Malouf, P.A. at (601) 957-1173 for your free initial consultation today.