Category Archives: Personal Injury

Comparative fault, Negligence, Oregon Law, Personal Injury, Uncategorized

Oregon is a Modified Comparative Fault State

Oregon’s comparative fault statute, ORS 31.600, and the related Uniform Civil Jury Instructions, provide that the trier of fact shall compare the fault of the claimant with the fault of any party against whom recovery is sought, the fault of third-party defendants who are liable in tort to the claimant, and the fault of any person with whom the claimant has settled.  In other words, the jury will be charged with allocating fault to all parties on the verdict form, including parties who have settled.  The percentages must equal 100% for a valid verdict.  Liability is several in Oregon and each party pays their allocated percentage of fault.

While a party may blame all fault on parties who are immune (such as an employer in a work-related personal injury case) and who, therefore, are not included on the verdict form, only those parties on the verdict form, including settled parties, will have fault allocated to them by the jury.  Oregon is a several liability state.  The comparative fault scheme is modified comparative.

Any compensatory damages awarded to plaintiff will be reduced by the corresponding percentage of comparative fault allocated to plaintiff by way of the affirmative defense of comparative fault.  Therefore, assuming that plaintiff’s own fault would be raised as an affirmative defense in a product liability case, plaintiff would be on the verdict form.  Any fault allocated to one or more plaintiff would reduce his or her verdict by the percentage of fault allocated to him or her.  If the fault allocated to a plaintiff is 51% or more, his or her recovery is barred entirely.

The jury must be told that an allocation of fault to the plaintiff will result in a reduction of the plaintiff’s award in proportion to the percentage of fault allocated.  Although settled parties are on the verdict form, and the jury is required to compare the fault of all parties on the verdict form in making their allocation, the jury is prohibited from being informed that any of the parties on the verdict form have settled.  See ORS 31.605.

Immune parties, such as those who are protected by the exclusive remedy provision (e.g., the employer), are not subject to tort liability to the injured worker and, therefore, are not placed on the verdict form, and no percentage of fault can be allocated to them.  However, the comparative fault statute does not prevent a party from alleging that the party was not at fault because the injury was the sole and exclusive fault of a person who is not a party.  In other words, although the jury may determine that an employer who was compliant with worker’s compensation is 100% at fault, they cannot allocate partial fault to the complying employer and the rest of the fault to those on the verdict form.

Under Oregon law, fault may be allocated to a plaintiff’s family member or friend.  For example, in cases involving children, failure to supervise may warrant a claim against a child plaintiff’s parents.  For example, in order for the jury to allocate fault to a parent who was negligent in failing to supervise his or her child, the parent must be a party to whom fault can be allocated on the verdict form.  The parent in this hypothetical will only be on the verdict form if a cross-claim or third-party claim properly alleges the specifications of negligence against the parent.  Defendant would then have the burden of alleging and proving that the parent’s own negligence, in failing to act reasonably to avoid causing injury to the child, was a substantial contributing factor in the accident and injury.

In the absence of proper specifications of negligence at the directed verdict stage against the parent (or any third party, and including the comparative fault of plaintiff), the judge could strike that party from the verdict form, and no fault could be allocated to them.

Oregon Law, Personal Injury, Product Liability, Punitive Damages, Uncategorized

Punitive Damages

Initially Pleading the Claim for Punitive Damages is Not Permitted in Original Complaint

Punitive damages are permitted in Oregon in product liability actions. Under Oregon law, at the time of filing a pleading with the court, the pleading may not contain a request for an award of punitive damages. ORS 31.725. At any time after the pleading is filed, a party may move the court to allow the party to amend the pleading to assert a claim for punitive damages. The party making the motion may submit affidavits and documents in support of the claim and the party opposing may do the same. Punitive damages in Oregon are an element of damages, and do not constitute a separate claim for relief. Under Oregon law, insurance coverage for punitive damages is permitted.

The Standard for Pleading Punitive Damages

Oregon has a relatively low bar for the inclusion of a claim for punitive damages. Plaintiffs need only present “some evidence” of the conduct that may give rise to punitive damages. ORS 31.725(3)(a). The showing necessary for the amendment is equivalent to a prima facie case that would merely need to withstand a motion for directed verdict at the time the amendment is sought. We emphasize that this showing of “some evidence” is a low bar, particularly in Multnomah County Circuit Court. In most cases, when plaintiffs intend add a claim for punitive damages, they will expressly state in the initial complaint an intent to move to amend to do so.

In most counties in Oregon, punitive damages are generally not allowed in simple negligence cases. However, in Multnomah County Circuit Court, we have seen simple negligence cases where judges have allowed punitive damages to go to the jury.

The Clear and Convincing Standard and Evidence of Conduct Required at Trial

In order to actually obtain an award of punitive damages from the jury, as opposed to merely obtaining permission from the judge to request punitive damages in an amended complaint, Oregon law requires imposition of a clear and convincing standard. Punitive damages are not available unless the plaintiff proves by clear and convincing evidence that the party against whom punitive damages are sought has acted with malice or has shown a reckless and outrageous indifference to a highly unreasonable risk of harm and has acted with a conscious indifference to the health, safety and welfare of others. ORS 31.730.

If a jury awards punitive damages, the court is required to review the award to determine whether the award is within the range of damages that a rational juror would be entitled to award based on the record as a whole, as well as statutory and common law factors. ORS 31.725 et. seq.

Statutory Allocation of Awards of Punitive Damages

With respect to the distribution of punitive damages, the percentages of the total award are all prescribed by statute. ORS 31.735. Under the statute, the State of Oregon takes 60% of every punitive damage award away from the plaintiff and puts it in the state crime victim’s fund. Then, plaintiff receives 30% and the attorney is paid an amount out of this 30%, but in no event more than 20% of the total punitive damages awarded. Finally, 10% is payable to the Oregon Attorney General for deposit in the State Court Facilities and Security Account. Plaintiff’s lawyers know this, so they often try to push harder to get the jury to award noneconomic damages. They may even decide to forego a punitive damages claim to avoid the risk of having a lower noneconomic damages award and a high punitive damages award that will go mostly to the state of Oregon. In cases with exposure to significant punitive damages, the Oregon Justice Department will often file a peremptory lien against the punitive damages to ensure proper distribution.

Damages Caps

There are no relevant damages caps on personal injury actions, as opposed to wrongful death actions. While Oregon case law has upheld a cap of $500,000 in noneconomic damages in wrongful death cases, the Oregon Supreme Court has declined to impose such a cap on noneconomic damages in personal injury cases on the basis that a personal injury cause of action was recognized at common law at the time of the adoption of the Oregon Constitution. In contrast, the Oregon Supreme Court upheld the statutory cap on noneconomic damages because the wrongful death action is a creature of statute, and a cause of action that did not exist at the time of the ratification of the Oregon Constitution.

One important note about the noneconomic damages cap of $500,000: While the cap has now been upheld by the Oregon Supreme Court in an en banc decision, this does not prevent the plaintiffs from pleading any amount they want to in the complaint. Under the statute, the jury is never told of the cap, and if the verdict for noneconomic damages exceeds the cap, it is the judge, not the jury, who reduces the verdict to $500,000 before entering the judgment. The judgment, rather than the verdict, is technically the document that has legal force. The entry of the judgment either starts the 30-day period in which to file a notice of appeal, or allows the plaintiff to execute on the judgment (collect either through voluntary payment or seizure of assets).

For example, let’s consider a hypothetical aviation crash. Suppose wife/mother is injured and her husband and son are killed. She could theoretically file a lawsuit demanding $50,000,000.00 in noneconomic damages for both her deceased son and husband. If the case went to trial under that scenario, and that amount was awarded, the judge, unbeknownst to the jury, and after the jury is excused from service, would reduce the verdicts in the two wrongful death cases to $500,000 each in noneconomic damages before entering the judgment.

Consumer products, Defective Products, Discovery, Evidence, Litigation, Oregon Law, Personal Injury, Prior Claims, Product Liability, Trials

Discovery and Admissiblity of Evidence of Prior Claims in Oregon Product Liability Cases

Olson Brooksby handles a wide variety of product liability cases involving products such as helicopter engines, heavy equipment, steel, toys, tools, household appliances and chemicals, paints, and solvents.  We frequently work with clients who have had prior claims involving allegedly defective products.  In product liability litigation, plaintiffs’ lawyers almost always ask for documentation involving prior claims.  Usually, plaintiffs issue a broad request for documents regarding all prior incidents of any kind related to the model of product at issue or any version of that model.

The Standard for Discovery of Prior Claims

In Oregon, evidence regarding prior claims is generally discoverable.  ORCP 36 B(1).  In order for an opposing or other party to obtain discovery, the evidence should simply be relevant and reasonably likely to lead the discovery of admissible evidence.  Therefore, on a motion to compel, product liability defense counsel should expect that documentation concerning prior claims will be discoverable, particularly in cases concerning home appliances and other mechanical products.

An objection to a discovery request on the basis that the evidence may not be admissible at trial is not proper.  Oregon trial courts will allow discovery of evidence of prior claims if the products, conditions, or uses are merely “similar” as opposed to “identical.”

By way of a hypothetical example, suppose Large Bike Manufacturing Company manufactured a number of bikes during the past few months or years and the front rim of the tire was bending when bumps were hit that similar bikes were able to withstand.  Also suppose that a bicyclist was injured when the front rim on one of the bike models struck a speed bump even though the bicyclist was riding cautiously and reasonably.  On a motion to compel, most Oregon state court trial judges would order the production of all prior incidents of injury regarding other bike models with the same wheel, not just the model of bike that the bicyclist was riding.  The court would also likely order production of other claims of injury on all bikes, even if such injuries were caused by other mechanical failures.

The Standard for Admissibility of Prior Claims

The admissibility of evidence of other claims is governed by Oregon Evidence Code (“OEC”) 401, which defines relevant evidence; OEC 402, which provides that relevant evidence is generally admissible; and OEC 403, which provides for the exclusion of relevant evidence in the event prejudice, confusion, or undue delay associated with the admission of the disputed evidence, in this case of prior claims, outweighs the probative value or helpfulness to the trier of fact.  Whether evidence of prior claims is discoverable and whether such evidence is admissible are two distinct issues.

With respect to the admissibility of evidence of prior claims, as opposed to the mere discovery of prior claims, OEC 401 generally provides that evidence of similar prior conduct, events, accidents, or even negligence, is generally held to be inadmissible to prove negligence or lack of negligence in the case being litigated.

However, evidence of prior similar acts, conduct, or events, which Oregon courts universally have ruled includes prior claims, is often held admissible to prove causation, danger, knowledge, intent, or the existence of a particular defect.  One of the seminal cases on this issue is Benjamin v. Wal-Mart Stores, Inc., 185 Or App 444 (2002), rev den, 335 Or 479 (2003).  Admissibility of the allegedly similar act will depend on whether prior conduct or events occurred under “similar conditions and circumstances,” although identical circumstances are not required.  Lakin v. Senco Products, Inc., 144 Or App 52, (1996), aff’d, 325 Or 438 (1997).

Whether the conditions and circumstances are substantially similar enough to allow admission of the evidence of prior claims is a decision for the court and will be reviewed on appeal under an abuse of discretion standard, which is a high standard.  As noted above, identical circumstances or an identical product is not necessary for admission of such evidence. Generally, unless there is clear prejudice, evidence of prior claims will be admissible.  The judge will usually comment that defense counsel is free to engage in cross-examination on the differences in the claims and argue that they go to the weight of the evidence.

In a product liability case, regardless of what the product may be, defense counsel should be prepared for a ruling that evidence of prior claims is discoverable.  Counsel should also be prepared for a ruling that evidence of prior claims is admissible.  Therefore, it may be advantageous to file a motion in limine to exclude evidence of prior claims on the grounds that they are either dissimilar, or that there is insufficient information to even determine whether they are dissimilar.  The motion in limine should be filed before trial, so that even if the court admits evidence of prior claims, experts and witnesses can be prepared to address the prior claims in a way that minimizes any perceived wrongdoing.  Counsel should also consider the possibility that any product design changes may be considered “subsequent remedial measures” and should plan any motions in limine accordingly.

 

Aviation, aviation attorney, aviation attorney, aviation, aviation law, aviation lawyer, aviation law, aviation lawyer, Helicopters, Personal Injury

To curb medical helicopter crashes, focus on pilot haste, experience

Modern healthcare capture
Helicopter Emergency Medical Services crashes

Here’s an opinion piece by shareholder Scott Brooksby,  published in the June 10 issue of Modern Healthcare:

To curb medical helicopter crashes, focus on pilot haste, experience

A dramatic national conversation erupted recently following a U.S. National Transportation Safety Board finding that smart phone texting was a contributing factor in the crash of a fatal medical-helicopter flight in 2011.

The discussion has concentrated on everything from connecting the event to the dangers of texting while driving to calls for a ban on texting by pilots in air medical operations.

Absent from the discussion, however, is a larger issue that’s well recognized by helicopter industry safety organizations, and what should be of great concern for hospital administration and other organizations that contract emergency helicopter services.  The issue has to do with the egregiously high incidence of fatal and critical Helicopter Emergency Medical Services (HEMS) crashes, and resulting personal injuries.

In comparison to virtually every other type of commercial aviation, there is an inordinate rate of accidents within medical helicopter aviation, with the 2010 NTSB data proof in point.

Essentially, NTSB segregates aviation operations into hundreds of categories, the largest being all U.S. major domestic air carrier flights.  In 2010, NTSB reported only 14 accidents among major air carrier aviation, none of which were fatal.  By contrast, in 2010 there were 13 HEMS accidents, including seven fatal crashes.

Medical helicopter pilots are heroic and driven individuals who are among the best-trained and highest-skilled pilots in the world and fly what arguably are the most dangerous missions outside of military aviation.  HEMS pilots possess the grit and courage to go forth in dangerous conditions any time of night or day, in icy conditions or great heat, in storms, in densely trafficked urban controlled airspace, and remote uncontrolled airspace.

The most dangerous occupation

Operating without the benefit of formal flight plans with takeoffs and landings in uncontrolled locations ranging from roads to ball fields to the tops of buildings, the challenge is incredible.  Speed is critical.  But it comes with great risk.  In fact, according to a University of Chicago report, crewing a medical helicopter is the most dangerous profession in America.

Clearly it takes a special individual to accept the challenge.  But according to the International Helicopter Safety Team, the same attributes of risk tolerance, confidence and dogged determinism required of a HEMS pilot commonly are the very factors that, when excessive, lead to helicopter pilot error.

But what complicates the issue of haste to meet critical needs is the fact that the majority of HEMS accidents occur not when pilots are ferrying a patient to emergency treatment, but instead take place when pilots are rushing to the scene to pick up a patient, or the transportation of organs.

NTSB data shows that fully 58 percent of the 31 medical flight accidents occurring from 2007 to 2009 took place when the HEMS aircraft were en route to pick up an injured patient, or involved organ transport organs. Only 42 percent of HEMS accidents occurred with patients on board.

Haste and pilot error under harrowing conditions is exacerbated in the case of less experienced HEMS pilots.  Although on the whole HEMS pilots rank among the most experienced and capable pilots in the world, NTSB records indicate that flight hours of HEMS pilots not involved in accidents have logged 19 times as much air time in a particular aircraft as those involved in accidents.

Managing contract helicopter risk

Since 2005, there has been an increasing call for greater safety requirements in HEMS aviation, focusing largely on navigation equipment and flight dispatch and monitoring systems.  We expect to see continued progress in that area.

In the meantime, to reduce the incidence of HEMS crashes as well as to exercise prudent risk management, here are some steps for hospital administrators to consider:

–        Review your HEMS contractor pilot training program, with a preference for programs that not only meet, but exceed, FAA compliance levels;

–        Request documentation of contractor aviation risk assessment programs, and review the specific crew checklist parameters to assess risk level of each flight;

–        Stipulate that pilots have a minimal level of flying hours on the specific type of aircraft to be used in life flight operations;

–        Stipulate that pilots have a certain level of military flying service, or equivalent civilian training;

–        Review pilot histories and encourage condition-specific training that corresponds to local conditions; and

–        To limit claims against your hospital or organization, ensure that your HEMS contracts contain solid indemnity provisions.

Although the tragic human consequences of a fatal medical helicopter crash are clear, there’s less recognition of the massive risk of litigation, which while principally focused on the flight service company easily can become a deep, years-long issue for the contracting hospital organization.

HEMS operators are the first line of defense in one of the greatest challenges of emergency care, operating under diligent training execution and best principles of safe flight as established by the FAA and contractor safety policies.  However, perfection is an aspiration, and recognizing the record of accidents, hospital organizations should look beyond smart phone bans to limit the occurrence and risk of medical helicopter accidents.

 

 

Damages, Experts, Litigation, Personal Injury, PTSD, Trials

The Newly-Released DSM-5 and Its Use in Personal Injury Cases

Olson Brooksby primarily defends high-exposure product liability and personal injury cases.  Over the past few years, it seems as though many of these cases involve personal injury claims for mental disorders, particularly Post-Traumatic Stress Disorder (“PTSD”), as a result of the alleged accident at issue in the lawsuit.

PTSD is a mental disorder within the anxiety classification of disorders in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, or “DSM”.  It is important to be familiar with the most recent version of the DSM when defending against a personal injury claim filed by a plaintiff who alleges a mental disorder.

In order to assist companies defending against personal injury claims requesting damages for various mental disorders, this article discusses the DSM and the recently-released DSM-5, and explains why it is important for personal injury defense lawyers to be familiar with the DSM-5 when defending against personal injury claims.

The DSM: The Single Most Authoritative Manual Regarding the Diagnosis of Mental Disorders

The DSM is universally recognized as the single most authoritative manual regarding the diagnosis of mental disorders.  The current version of the DSM, the DSM-5,was just released this week.  The previous version, the DSM-IV, was published in 1994 and the text was revised (DSM-IV-(TR)) in 2000.

The usefulness and credibility of the DSM for education, research, clinical, or forensic work depends upon the support of an extensive empirical foundation.  The DSM was created by the  American Psychiatric Association (APA) in order to provide a helpful guide to clinical practice with a uniform nomenclature that spans disciplines and purposes.  While a complete history of the development of the DSM-5 and earlier editions is far beyond the scope of this article, a short synopsis is crucial to the understanding of the universal acceptance of the text as authoritative.

The Principal Purpose of the DSM

The undisputed principal purpose of the DSM is to aid clinicians in the diagnosis of mental disorders, not for forensic purposes.  In fact, the DSM-IV and 5 both include disclaimers that spell out the significant risks that are present within the DSM categories, criteria, and textual descriptions when they are employed for forensic purposes.  The primary danger is that the diagnostic criteria will be misused or misunderstood.  This is because of the imperfect fit between the questions of ultimate concern to the law and the information used by clinicians to render a clinical diagnosis.

Additionally, in a forensic setting, nonclinicians should be cautioned that a diagnosis does not carry any necessary implications regarding the causes of the individual’s mental disorder or impairments.  The clinical diagnosis of a DSM mental disorder is not sufficient to establish the existence for legal purposes of a “mental disorder”.  In determining whether an individual meets a particular legal standard (e.g., a particular disability), additional information is usually required beyond the DSM diagnosis.

The DSM provides categorical classifications that divide mental disorders into types based on criteria sets with defining features.  It is a classification of mental disorders that was developed for use in clinical, educational and research settings.  The DSM is meant to serve as a guideline to be informed by clinical judgment and is not meant to be used in a cookbook fashion.  It is essential that the DSM not be applied by untrained individuals, since clinical training, judgment and experience are essential to proper diagnosis

The Development of the DSM-5

A Task Force and Work Groups made up of more than 160 world-renowned clinicians and researchers proposed the draft criteria for the DSM-5.  Those clinicians and researchers, all volunteers, consisted of experts in neuroscience, biology, genetics, statistics, epidemiology, social and behavioral sciences, nosology, and public health.

Applying Knowledge of the DSM-5 to Claims in Personal Injury Cases

Personal injury defense lawyers should be prepared to cross-examine forensic psychologists who testify on behalf of plaintiffs who allegedly suffer from any kind of mental disorder.  There are a number of reasons that extensive preparation is required when defending against personal injury claims for mental disorders, particularly claims for PTSD.  These include the nomenclature involved in the diagnosis, the relative complexity and universal acceptance of the DSM-5 as the authoritative source for the PTSD diagnostic criteria, and the dangers of malingering when financial remuneration is at issue.  Other reasons include what is typically a lack of the critical additional information regarding a plaintiff’s background, inadequate testing, improper reading of (or absence of) validity scales in a given standardized test, or an absence of reliance on any other data or criteria by the forensic psychologist testifying on behalf of the plaintiff.

If defense counsel is thoroughly familiar with the DSM-5, the DSM-5 criteria and commentary on the particular mental disorder at issue, and is prepared for an effective cross-examination of the plaintiff’s treating or forensic psychologist, the damages in cases involving personal injury claims for mental disorders can be significantly reduced or eliminated.

Aviation, Burn injuries, Catastrophic Injury, Litigation, Manufacturing, Personal Injury, Product Liability, Workplace Injuries

Managing burn risks in the manufuacturing industry

Scott_0844

Lawyers for the manufacturing industry should pay particular attention to assisting their clients with managing burn risks.  One of the under-recognized aspects of workplace injury risk has to do with the relationship between the level of technology and the potential for risk.  The following is from Scott Brooksby’s article published in a manufacturing trade online magazine,  Manufacturing.net, which delivers to a global community the most up-to-date news, trends and opinions shaping the manufacturing landscape–

The Manufacturing Industry Should Assess Its Technology Ladders When Addressing Burn Risk

There are few more sophisticated and complex high-heat metallurgy manufacturing industry processes — and few with less tolerance for error — than the processes involved in manufacturing components of the hot-section of an aviation gas turbine engine. This precision minimizes the risk of catastrophic aviation disasters such as uncontrolled engine failure.

Involving super-heated, liquefied metals and extremely hot smelters, furnaces, crucibles or molds, it might be assumed that hot-section manufacturing constitutes a high-risk burn environment.  Actually, the danger of serious burns in any manufacturing environment often are misunderstood or underappreciated — as are the staggering human and economic costs. With a single bad burn, a worker can be scarred for life, and manufacturers or insurers may be exposed to tens of millions of dollars in worker’s compensation payments, settlements or verdicts. And no class of burns creates greater tragedy or higher financial costs than 4thdegree, full-thickness burns to the hands and face associated with super-hot metal production.

Just to illustrate, burn-center treatment of a 4th degree burn covering 20 percent of a victim’s body — a “serious large burn” — easily can exceed $750,000 for the first few months of intensive treatment at a burn center. Reconstructive surgery can continue for decades, and pain and the humiliation of disfigurement can be a life-long burden for the victim.

Precision not the only benefit of sophisticated automation

But burns in aviation hot-section parts production are relatively rare for three basic reasons. First, and principally, automated technology that delivers micron-level tolerances minimizes human error — systems that utilize computerized ovens and robots so complex that molten metals are measured to the microgram are unlikely locations for human error that leads to a burn injury.

Second, largely due to the complexity of the process and technology, the hot-section manufacturing workforce frequently is uncommonly long-tenured, highly skilled and well-educated. Last, workers are subject to disciplined safety training, and benefit from high-tech personal protective equipment — principally to reduce the risk of burns. Phenomenal technology, great training and a superior workforce all combine to mitigate the hazards of super-heated metals production.

With turbine fan blade manufacturing as a case in point, let’s review the correlation between technology sophistication, training and burn risk.

Moving down the technology ladder moves you up the burn-risk ladder

At the height of technology and its attendant safety halo are compressor, turbine disc and turbine blade manufacturing stages, with computer-controlled processes delivering incredible product quality while keeping workers safe from burns.

Highly trained technical workers oversee the automated process of powder metallurgy, in which titanium is heated to its melting point of 3,000°F and spun onto a rapidly rotating turntable, transforming the molten metal into microscopic droplets that quickly cool and form a fine metal powder. In enclosed ovens, the powder is reheated to more than 1,000°F, and pressed at 25,000 psi into a disc. All of this takes place in a sealed environment.

Turbine discs and blades, also formed through powder metallurgy, are subject to even greater stresses because of the intense heat of the nearby engine combustors.

Here we begin stepping down the technology ladder and up the risk ladder, as molten metal often is hand-poured into molds. First, copies of the blades are formed by pouring wax into metal molds. Once set, the wax shape is removed and immersed in a super-heated ceramic slurry bath, forming a ceramic coating. Each cluster of shapes is heated to harden the ceramic and melt the wax, and molten metal is poured into the hollow left by the melted wax.

Depending on the material being formed, turbine blades are subject to temperatures of from 1,000 to 2,500°F, so they are coated in ceramic thermal barrier coatings. The ceramic must be melted, and the blades dipped by workers into the molten ceramic, again at temperatures far exceeding 1,000°F.

While major portions of the fan blade stages take place in compartments, production of parts such as combustion chambers and compressor blades revert back to traditional casting methods, with workers directly exposed to liquefied titanium and metal alloys being poured into molds, which often are manually handled.

Burn risk skyrockets in secondary processes

It’s axiomatic to say that burn risk escalates as a production line transitions from fully automated to a blend of automated and manual processes, to strictly manual processes. Less well-recognized is the reality that for virtually all metals manufacturers, the least automated, dirtiest and most dangerous aspects of production are secondary processes — such as mold cleaning in aviation engine hot-section manufacturing. Unfortunately, the combination of “first assignment” areas for new, contract or temporary workers and lack of automation can lead to tragic result.

In hot-section cleaning departments, parts are dipped in large, open tanks of high-temperature caustic chemicals such as sodium hydroxide and potassium hydroxide to remove most of the casting shell.  The chemicals themselves pose a potential danger, and the threat of burns escalates due to combination of heat and the mechanical nature of the work — which industry to date hasn’t yet found a way to automate.

Further, in this setting, workers periodically climb into empty tanks to undertake a potentially perilous task known as “tank digging.” It’s been documented that in some cases, workers with less than 90 days on the job have been assigned a supervisory role in this processes.

A caution regarding temporary workers where burns may occur

Although as noted, aviation component manufacturing generally employs a highly skilled workforce, but even here, the intersection of low technology and temporary or less skilled workers is a dangerous one. First, new or inexperienced workers frequently aren’t fully aware of risks and dangers involved in a job, and secondly, because of legal and financial ramifications in the event of a burn injury to a contract worker.

This is especially critical since, in most states, worker’s compensation is the worker’s sole remedy against the employer. Worker’s compensation does not typically provide for non-economic damages (pain and suffering), which dramatically spike the value of litigated settlements or verdicts in burn cases. However, other classes of workers — notably temporary and other contract workers — may be able to sue for non-economic damages resulting in verdicts or settlements that can cripple a company.

Therefore, burned workers will look for employer targets who do not ensure protections typically afforded through worker’s compensation or indemnity across all classes of workers.

Decrease risk to the business as well as to workers

In addition to investing deeply in training and the safest manufacturing equipment, every manufacturer first needs to be aware of legal and financial ramifications in the event of a burn injury to a contract worker. Employers should exercise caution in the placement of temporary workers, and closely review contracts with temporary worker service providers to ensure that iron-clad provisions are in place to contractually obligate service providers to provide worker’s compensation for the temporary employee. Also, manufacturers also should insist on indemnity provisions that protect against any claims brought by the temporary worker for injury.

In many areas, the aviation hot section component manufacturing industry represents a pinnacle of safety training and manufacturing technology.  But a lesson can be learned in recognizing the increased threat of burn risk at stages where the technology footprint is light, and the workers are less trained and less invested.

 

Burn injuries, Catastrophic Injury, Damages, Litigation, Personal Injury, Product Liability, Workplace Injuries

Aftercare considerations in catastrophic injury cases, particularly burn injury cases

Catastrophic injury cases can be particularly difficult to defend.  Burn injury cases are difficult to defend due to the severe, painful, and grotesque nature of the injury.  With relatively few exceptions, there is no such thing as a short stay in a regional burn center.  Such centers do not treat sunburns or minor cooking accidents.  Based on our experience when defending serious burn cases, it is not uncommon for stays in burn centers to last weeks, months, or even in excess of a year.  Stays of many months or exceeding a year typically cost well into the seven figures for past treatment.  Such aftercare means that most burn cases are high-exposure cases that require serious evaluation and preparation.

Treatment After Discharge From the Burn Center

Serious burns are not “healed” at the point of discharge from the burn center.  Release from the burn center in serious burn cases typically signals the beginning of a long series of follow up treatment visits and possibly scar revisions, as well as additional grafting or other procedures.  Aftercare treatment may last months, years, or even decades in the most severe cases.  Discharge typically begins with admission to a step-down facility.  This is typically a residential facility affiliated with, and in close proximity to, the burn center.  The length of stay in the step-down facility varies, but usually lasts about thirty days.

Both at the step-down facility and after return to home care, the victim of a serious burn will begin a series of follow up visits with the burn physician.  The most common aftercare is a continuation of excision and grafting, both to those areas where grafts have been rejected or did not “take” sufficiently, or where multiple grafts are required for a structural or functional purpose.  Depending on the nature of the necessary revision procedures and the skill required, this can be a complicating factor when the burn victim lives far from a regional burn center.  Extensive travel time may be required and often the plaintiff will seek monetary damages for such travel, or argue that, by definition, it constitutes an impairment of earning capacity due to employment interruption.

Another common aftercare procedure is tissue expansion.  With tissue expansion, a balloon expander is inserted under the skin in the area in need of repair.  Over time, the balloon will gradually be filled with saline solution, slowly causing the skin to stretch and grow.  Once enough extra skin has been grown, it is then used to correct or reconstruct a damaged body part.  This is common for breast reconstruction and parts of the upper torso.

Typically burn surgeons and plastic surgeons will take an inventory approach to necessary reconstructive and plastic procedures.  They will triage the most problematic areas, starting with the face, head and extremities, if affected, and work through a graded inventory of affected areas.  This could go on for five-plus years.  With many patients, the psychological aspect of treatment becomes the most difficult.  It feels as though they are constantly having surgeries, even if the surgeries are, in fact, intermittent.

In burn cases, the major and minor reconstructive surgeries will eventually reach the point where scar repair has no functional relevance and is cosmetic only.  However, this is more complicated with major burns because total body or near total body burns are tied to functional needs, and this makes the query about whether a given procedure will produce worthwhile, if any, additional cosmetic benefits more difficult.  The total body surface area that is burned, particularly if it includes the face and hands, may drive some conflict in the debate regarding whether further procedures add function or are merely cosmetic and whether further cosmetic benefit can even be achieved.

Because Burn Cases Are Generally High-Exposure Cases, it is Important to Hire the Best Experts and Consider All Variables When Assessing Damages.

Some burn injuries, such as deeply burned hands, cannot ever be fully restored.  Furthermore, some burn reconstructive surgeries go on for many years, even as many as thirty-plus years.  It is imperative in the defense of burn cases to hire the best possible expert.  Because a significant portion of the potential exposure lies in the intensive nature and long arc of the aftercare, the expert can be helpful in preparation for cross-examination of the plaintiff’s expert on whether some of the allegedly needed procedures will provide any functional, or even any significant cosmetic, benefit that would justify both the cost and the risks that are perennially associated with grafting, such as rejection, infection and additional scarring.

When a reasonable settlement is possible, it should be seriously considered, even when there appear to be good defenses.  Those defenses can be useful negotiation points during a settlement.  Variables in burn centers, surgical treatment, aftercare, the nature of the burn, and the presentation of the plaintiff all make any hard and fast rules for case assessment ineffective.  But manufacturers and insurers should keep in mind that burns, unlike most other injuries, especially to children, have the potential to create unpredictable, and possibly soaring verdicts.

 

 

 

Aviation, Burn injuries, Catastrophic Injury, Damages, Heavy Equipment Manufacturing, Heavy Machinery, Helicopters, Litigation, Manufacturing, Personal Injury, Product Liability, Steel, Trials, Workplace Injuries

Variables that can affect burn injury cases

Most experienced defense lawyers know that the variables in burn injury cases prevent anything resembling a guarantee of a good result.  The following variables can affect the outcome of a case, including the potential financial exposure that a defendant or its insurer or worker’s compensation carrier may face:

– the different types of skin grafts and skin graft surgical procedures commonly involved in burn cases;

– whether, in high total body surface area (tbsa) burns, complete excision and grafting can be completed in a single principal procedure;

– the treatment technique, surgical technique and treatment philosophy of the physician; and

– the relative size of the burn center, as larger centers tend to be able to perform certain procedures–not because of greater skill, but because of the size and number of  surgical teams necessary.

Skin Graft Classification and Skin Graft Surgical Procedures

In burn injury cases, surgical removal (excision or debridement) of the damaged skin is followed by grafting.  The grafting is designed to reduce the course of hospital treatment and improve function and cosmetic appearance.  There are typically two types of skin grafts–mesh grafts and sheet grafts.  A less-common, third type of graft is a composite graft.

Mesh Grafts

Mesh grafting is known as partial-thickness grafting, or split-thickness grafting.  With mesh grafting, a thin layer of skin is removed from a healthy part of the body, known as the donor site.  It is processed through a mesher, which makes apertures into the graft. The graft then becomes mesh-like, allowing it to expand approximately nine times its original size.  Such grafts are used to cover large areas and the rate of auto-rejection is lower.  Harvesting of these grafts from the same site can occur again after as little as six weeks.  The surrounding skin requires dressings and the donor site heals by reepithelialization.

Using a dermatome, the surgeon usually produces a split-thickness graft which is carefully spread on the bare area to be covered.   It is held in place by a few small stiches or surgical staples.   The graft is initially nourished by a process called plasmatic imbibition in which the graft drinks plasma.  New blood vessels begin growing from the recipient area and into the transplanted skin within 36 hours in what is called capillary inosculation.  To prevent accumulation of fluid, the graft is frequently meshed by making lengthwise rows of short interrupted cuts, each a few millimeters long, with each row offset to prevent tearing.  This allows the graft to stretch and more closely approximate the contours of the affected area.

Sheet Grafts

In the alternative, a sheet graft, which is a full-thickness graft, involves pitching and cutting away skin from the donor section.  Sheet grafts consist of the epidermis and entire thickness of the dermis.  Sheet grafts must be used for the face, head and hands because contraction must be minimized.  If sheet grafting is necessary but the donor sites are insufficient, the outcome is likely to be less satisfactory, and the financial exposure in such cases will be higher.

With sheet grafting, the donor site is either sutured closed directly or covered by a split-thickness graft.  Sheet grafts are more risky in terms of rejection, yet counter-intuitively leave a scar only on the donor section.  Sheet grafts also heal more quickly and are less painful than partial-thickness grafting.

Sheet grafting is usually difficult in severe aviation or manufacturing burns because those involve high-percentage tbsa burns and donor sites are therefore limited.

Composite Grafts

The third type of graft, a composite graft, is a small graft containing skin and underlying cartilage or other tissue.  Donor sites would include the ears and other cartilage to reconstruct, e.g., nasal rim burns.

In High TBSA Burns, When Immediate, Complete Excision and Grafting is Completed in a Single Procedure, Damages Amounts May Be Lower.

In cases involving clearly severe, high tbsa burns, whether full or partial thickness, immediate, complete excision and grafting is usually indicated.  If immediate excision and grafting is complete–that is, done in a single procedure–a much larger surface area surgery can be completed with less blood loss.  This minimizes transfusion needs and dangers and also speeds physiological restoration.

Furthermore, an immediate, complete excision and grafting procedure can often allow use of good skin for grafting that would otherwise need to be excised.  If the procedure is not done immediately, less skin may be available for grafting.  In other words, skin that otherwise may have been healthy and usable when the plaintiff was first admitted to the hospital may die if the procedure is not done immediately, particularly if that skin is close to the burn site.

Immediate, complete excision and grafting also cuts down on the number of procedures and allows important vascular redevelopment to begin occurring sooner and supplying the graft locations with blood flow, which is essential to healing.

 The Treatment Technique, Surgical Technique and Treatment Philosophy of the Physician Can Be Outcome-Determinative

The simple fact is that some surgeons are more skilled than others, so the outcome may be better or worse depending on the skill of the physician.

There are also some advances in burn surgery that particular physicians are able to employ.  For example, in the most serious burn cases, grafts may be taken from other animals.  Such grafts are known as heterografts and, by design, they serve as temporary dressings that the body will unquestionably reject within days to a few weeks.  They are used in severe cases to reduce bacterial concentration of an open wound and reduce fluid loss.

Additionally, some surgeons are able to use cell cultured epithelial autograft (CEA) procedures, which involve removal of skin cells from a patient and the growth of new skin cell sheets in a lab.  Although the new sheets will not be rejected, they are typically only a few cells thick and do not stand up to trauma.  As a result, many such grafts do not take and the procedure must be repeated or an alternate procedure employed.

Furthermore, some physicians prefer to do more sheet grafting versus mesh grafting.  The physicians who prefer mesh grafting like it because they can cover much larger areas in a shorter period of time.  Conversely however, mesh grafting requires more revision surgeries, more of a risk that the grafts don’t take, and more contraction, which is disfiguring and requires further surgery.

Different groups of surgeons have their own philosophies and cultural preferences.  In Portland, Oregon, for example, there is one group of approximately five, highly-skilled burn surgeons who staff the Oregon Burn Center at Emanuel Hospital.  Due to the relatively small size of the burn center, they tend to wait four to seven days before conducting major graft procedures so that they can have a better assessment of the full extent of the injury.

The Relative Size of the Burn Center Can Be Outcome-Determinative

Larger burn centers, such as the ones at UC Davis or Harborview in Seattle, do not necessarily provide better treatment, but they are typically capable of complete excision and grafting at admission when there is a high percentage of the total body that sustains full-thickness burns or a combination of full-thickness and lesser degree burns.  This is a function of burn center size, not the skill of the physicians.  A full excision and grafting procedure is lengthy and generally requires two full surgical teams and at least two attending physicians and two assistant surgeons.  This type of procedure is generally not possible at relatively smaller burn centers such as the Oregon Burn Center.

Using Variables in Burn Cases to Assess Case Value and Adequately Prepare

The variables discussed above vary from case to case.  It is important to assess each one when valuing a burn injury case in order to determine the defendant’s likely exposure and prepare adequately for productive settlement discussions and, if absolutely necessary, trial.

 

Aviation, Burn injuries, Catastrophic Injury, Damages, Defective Products, Heavy Equipment Manufacturing, Heavy Machinery, Helicopters, Litigation, Manufacturing, Personal Injury, Product Liability, Steel, Trials, Uncategorized, Workplace Injuries

An Introduction to Burn Injury Significance and Burn Centers

Burns Are Significant Injuries and Can Lead to Some of the Highest Jury Verdicts

Olson Brooksby appreciates the potential high-exposure value of burn injury cases.  Scott Brooksby has significant experience in serious, total body surface area (tbsa) burn injury and wrongful death cases.  Our lawyers understand the delicate nature of large burn injury cases and work to minimize exposure to our clients.

Defendants potentially subject to burn injuries should employ best safety practices and make every attempt to avoid such injuries.  Burns are one of the most serious injuries in personal injury cases.  They may be the result of chemical fire or exposure, explosions, paints, solvents, or conventional fire.  Sometimes burns are the result of contact with hot equipment or other product liability related events.  The defense of serious burn injuries, including those related to aviation, product liability and heavy manufacturing is a large part of the defense practice of Olson Brooksby.  A bad burn case in an aviation or heavy manufacturing accident, or as the result of a product liability defect can easily present high financial exposure to manufacturers and/or insurers.  Settlement exposure can climb into the millions or tens of millions, with verdicts at least as high.

Even when there appears to be a strong defense, defendants should not underestimate the overwhelming sympathy a jury will feel when it sees a burn victim, particularly with serious facial burns or burns to the extremities.  A good plaintiff’s lawyer will ask the jury to consider things like the profoundly disfiguring effects of a bad facial burn and the pain that everyday exposure to sunshine will cause its victim for life, or the lifelong gawking stares it will draw.

Similarly tragic are severe burns to the hands, which cannot be restored to even near full function or pre-burn aesthetics and result in pain every time the victim is touched.  When liability is clear, burn cases should be settled because, unlike other personal injury cases, deformities caused by burns can incense juries to the point where they cannot put their emotions aside.  The result can be verdicts in the millions or tens of millions, including punitive damages (particularly if children are involved or there is perceived recklessness).  Although the amount of burn verdicts used to depend on the region of the country where the case originated, such verdicts are now generally high in every jurisdiction.

If the burn injury case must be tried, it must be done with great sympathy for the victim  and careful attention to the medical aspects of the case, including future treatment, which may last decades and cost into the six or seven figures.

When trying a burn injury case, it is important to know where the injury occurred.  If a plaintiff has to be air lifted to a burn center, that can radically change the extent of the injury.  Similarly, it is important to know the details of the burn center where the plaintiff was treated because that can also change the extent of the injury and thus affect the jury verdict amount.

The Location of the Accident Can Change the Extent of the Injury and the Jury Verdict

In those industries where serious conventional burns are common, such as aviation disasters or steel or metal manufacturing, “serious” can arbitrarily be defined as full-thickness burns over 20% or more of the tbsa.  The location of a burn center and the length of time to transport the victim to the burn center can be outcome-determinative.  This is also particularly true where babies and children or those over sixty-five are the victims, or where there are serious burns to the face, head, extremities, or internal organs.

Manufacturers and insurers obviously do not choose where burn centers are located.  After an accident, first responders will obviously make needed decisions about transport.  Most heavy manufacturing, including that of aviation hot section components, is done near large metropolitan areas that typically have at least one burn center.  Perhaps some of the greatest danger lies in cases in remote areas where individuals are subject to burns from allegedly defective products.  For example, a person camping in a remote area of the Western United States who is badly burned by kerosene at a remote campsite may not be able to reach a burn center for hours.  There may be no cellular phone service and a helicopter ambulance may have to be dispatched from hundreds of miles away.

Depending on the severity and tbsa burned, the size and related capabilities of the burn center will have a direct impact on the plaintiff’s recovery, and consequently, the ultimate exposure to the manufacturer and/or insurer in any settlement or verdict.

All Burn Centers are Not the Same–They May Have Varying Treatment Philosophies, Training and Capabilities

The size of the burn center can also be outcome-determinative because smaller centers, such as the Oregon Burn Center at Emanuel Hospital, are generally not large enough to perform a full excision and grafting in high tbsa burn cases.  A full excision and grafting is where they do all of the procedures at once instead of one at a time.  Some burn physicians believe that, depending on the case, better outcomes are achieved through full excision and grafting in high tbsa burn cases.

There are approximately 45 regional burn centers in the United States.  Verification of burn centers is a joint program administered in the form of a rigorous review of the applicant centers by the American Burn Association (ABA) and the American College of Surgeons (ACS).  Many states do not have a regional burn center and most states have only one or two.  California has the most, with seven.  Most burn centers are run by a single group or an extremely limited number of groups of burn surgeons who practice at the facility.

Unlike hospitals, burn centers do not typically extend general privileges to physicians.  Most burn surgeons have been trained as general surgeons, and then have gone on to receive additional specialized training in burns.   Along the population corridor running down I-5 between Seattle and Davis, California there are three verified regional burn centers, one each in Seattle (Harborview), Portland (The Oregon Burn Center at Emanuel Hospital), and The UC Davis Regional Burn Center.

Training and available resources vary from center to center.  Burn centers also tend to have more pronounced treatment philosophies and cultures because they are staffed by relatively few surgeons who generally practice in the same group or just a few groups.  However, although burn center practice varies, it is imperative that those who are seriously burned reach a regional burn center as soon as possible because specialized treatment is inarguably outcome-determinative

The mechanics of injury, lots of fire, accelerant, and contact with temperatures in excess of 1,000 degrees are factors that are considered when determining whether burns are graftable from point of admission.  In any serious burn case, most intermediate facilities such as a conventional hospitals will seek to transfer a seriously burned patient, almost always by air, to a regional burn center as soon as stabilization occurs.

 

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NTSB Releases Statistics on Aviation Fatalities in 2011

The National Transportation Safety Board is a unique federal agency.  It is not a federal executive branch agency.  Rather, it is congressionally chartered with a single aviation mandate: to investigate every aviation accident in the Unites States, determine the probable cause of the accident, and make recommendations to help protect against future accidents.  See 49 U.S.C. §§ 1131, 1132, 1135 (Lexis Nexis 2006 and Supp. 2011).  Although the full extent of the operational and investigative methods of the NTSB are beyond the scope of this article, 49 U.S.C. § 1154(b) prohibits litigants from using the final probable cause report prepared by the Board in any manner.  However, the NTSB has a team of investigators in different specialty areas who prepare factual reports that do not involve conclusions regarding the cause of the crash.  Use of these reports depends on the particular judge’s rulings on the rules of evidence, particularly Rule 803(8).

The NTSB recently released aviation data and statistics for transportation fatalities in 2011, including aviation.  According to the NTSB, there were 494 aviation fatalities in 2011.  Those fatalities are broken down by area as follows:  General Aviation (444); Air Taxi (41); Foreign/Unregistered (9); Airlines (0); and Commuter (0).

Olson Brooksby PC maintains an active aviation accident and aviation component part product liability defense practice.  For further information, please contact our office.