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Defective Medical Products

Defective Medical Products

Personal Injuries

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I was Injured by a Drunk Driver, What do I Do?

  America has a drinking problem. Alcohol related deaths are the fourth leading preventable cause of death in the United States; and every two minutes, a person is injured in an alcohol related crash. Although drunk driving is a crime

I was Injured by a Drunk Driver, What do I Do?

 

Image: Fox News

America has a drinking problem. Alcohol related deaths are the fourth leading preventable cause of death in the United States; and every two minutes, a person is injured in an alcohol related crash. Although drunk driving is a crime in all states, victims of drunk driving incidents are not compensated for their injuries through criminal actions. Instead, victims (or their loved ones) must sue the drunk driver in civil court to recover for their losses. In these types of cases, there are a few important points to keep in mind:

Beware of Settlements from the Driver’s Insurance

If you were hit by an insured drunk driver, it is likely that driver’s insurance company will attempt to contact you and settle your claim. This means the insurance company will offer you a specific amount of money intended to compensate you for your injuries and property damage. If you accept this settlement, it is very unlikely you will be able sue the driver (or their insurance company) to recover anything else. Frequently, these settlement offers are low-balls and do not account for future medical expenses or pain and suffering. So, it is important to speak with an attorney before cashing any checks or signing anything from someone else’s insurance.

Be Aware of Dram Shop Laws

Unfortunately, not all drunk drivers will carry adequate insurance to cover your claim, or they are uninsured. The driver may be judgement-proof—meaning if you prevail in a lawsuit, you cannot recover anything since the driver doesn’t have enough (or any) assets to pay the judgement. In this situation, it is important to know if you can bring a Dram Shop claim against the bar or restaurant who may be partially responsible for the driver’s intoxication. Depending on your insurance, you may also have the choice of bringing a claim under your uninsured motorist coverage—you should check with your insurance carrier if this is part of your policy.

The State You Live in May Impact Your Case

Some states have no-fault insurance laws. This means to bring a civil lawsuit for automobile related injuries, your damages must exceed a certain cost threshold. In these states, if you do not meet the “threshold,” you may be prevented from bringing a claim. Only 12 states are no-fault states (California is not one of them). In the other 38 states, automobile accident claims proceed as any other negligence action. Click here for more information about no-fault laws.

Drunk driving personal injury lawsuits are complicated, and you should get help from an experienced attorney. At Kershaw, Cook & Talley, we only represent victims of drunk driving accidents, not the drunk drivers—so rest assured that we look out for your best interest. If you or a loved one is a victim of a drunk driving accident, we can help. Call our office for a free case evaluation.

What is Premises Liability?

Image: American Dream Home Inspection

Premises liability involves injuries caused by unsafe or defective conditions on another person’s or business’s property. For example, if you slip and fall on another person’s property due to an unsafe condition, or if an elevator breaks and injures you, these cases would fall under premises liability. If an unsafe condition exists on someone’s property and it causes injuries to an individual, then the owner of the property may be at fault.

A court may follow the “reasonableness” rule to decide whether someone’s injury is the owner’s responsibility. The court will evaluate if the owner was acting reasonably and whether they cared for their property well. In addition, the owner knew their property was unsafe  and did not remedy the hazard, or they did not safeguard their property. Using the slip and fall example, if an owner did not know there was an oil spill on the floor, it is unlikely it will be the owner’s fault unless the spill was so obvious that he should have cleaned it.

Although premises liability laws usually follow this “reasonableness” rule, personal injury laws vary by state. Some use a different rule that categorizes people as “invitees, licensees, and trespassers.”1 California law considers invitees as individuals given permission and invited onto a business property, like a customer in a store. Business owners are responsible for making their property safe by maintaining conditions such as leaky roofs, broken pipes, or spills on the floor. Licensees are defined as social guests, such as friends or family coming over to your house. Owners are accountable for a licensee’s safety to the extent that the owner at least makes reasonable effort to repair unsafe or dangerous conditions. Liability of business owners to invitees differs because business owners have a greater responsibility to keep a safe environment for their guests. Lastly, trespassers, are individuals an owner does not invite onto their property. Owners are not required to ensure the safety of trespassers unless they know of the trespasser (for example, kids who sneak onto a property to use the pool). In this case, the owner is required to use care concerning the trespasser’s safety.

At Kershaw, Cook & Talley, we specialize in personal injury cases including premises liability. If you were seriously injured on a property, and the owner knew of the hazards, call us for a free case evaluation at 888-997-5170.

1 “Premises Liability: Who is Responsible?” FindLaw, http://injury.findlaw.com/accident-injury-law/premises-liability-who-is-responsible.html, June 19, 2017.

Car Accident with an Uninsured Motorist

Don’t have time to read this blog?  Watch this video one of our attorneys recorded on this topic:

The Insurance Research Council (IRC) estimates that 1 driver out of every 7 drivers in the United States is uninsured.  If you are involved in a collision with an uninsured driver, your ability to recover your property and injury damages will largely depend on how well you have protected yourself through your own policy of insurance.

In California, the type of insurance coverage you will need to protect yourself should you become injured in a collision with an uninsured driver is known as UM/UIM coverage.  That is, Uninsured Motorist/Under-Insured Motorist coverage.  Your insurance company must offer you this coverage and if you choose not to buy it, you must sign a waiver.  If you didn’t sign a waiver, it will automatically be included with your coverage by law.

If you have purchased UM coverage as part of your auto policy, you will need to contact your carrier and inform them of the collision, the fact that you were injured, and that the other driver did not have insurance.  They will assign a claim representative to assist you with accessing your coverage.  The claims representative will likely take steps to verify the uninsured status of the other at-fault driver, before processing your claim.  Even though this is your own insurance company you’ll be dealing with, it is always a good idea to contact an experienced personal injury attorney before making the call to ensure your rights are protected.

Even if the other driver did have insurance coverage, you should check your policy to see if you have UIM coverage.  This type of coverage will “fill in the gap” between the other driver’s coverage and the total amount of your damages, if there’s a difference.  For example, let’s say your injury damages (medical expenses, lost wages, pain and suffering) from the collision total $100,000 and the other driver had $15,000 to cover bodily injuries.  Let’s further assume you have $100,000 of UIM coverage in your own policy of insurance.  You must first make a claim against the other driver’s insurance policy and collect the full $15,000.  Then you must prove to your own claim representative that you collected the full amount of the other driver’s available insurance coverage.  This is usually accomplished by faxing them a copy of the check along with a copy of the other driver’s insurance declaration page showing they were only insured up to $15,000 and there was no other coverage.  You may then work with your own claims representative to collect the remaining $85,000 from your UIM coverage to fully compensate you for your damages.  Again, it is always a good idea to make sure you at least consult with an experienced personal injury attorney to protect your rights.  Although they may tell you that you are in good hands or, that just like a good neighbor, they’ll be there, it’s not always the case.

If you or a loved one you know has been injured a car accident with an uninsured driver let Kershaw, Cook, and Talley assist you. Call 888-997- 5170 for a free case evaluation.

Fourth of July Safety Tips

Photo: SFGate

Nothing says “summer” like backyard barbecues and fireworks on the Fourth of July. Independence Day is a great excuse to get together with family and enjoy some nice weather. Unfortunately, it is also the most dangerous holiday of the year. Alcohol, fireworks, and crowded pools contribute to large amount of injuries occurring each year. So, with the holiday fast approaching, keep these important safety tips in mind.

Use extreme care when handling fireworks. Fireworks are a culprit for severe burns and wildfires when mishandled. If you plan on celebrating with fireworks this year, follow these tips from the U.S. Consumer Products Safety Commission:

Grill safely at home. Each year people are injured while barbecuing on charcoal or gas grills. Ensure your family stays safe at your backyard-BBQ with these tips from the Red Cross.

Stay safe while swimming. If you plan on taking your family to the beach or lake this year, stay afloat with these water safety precautions from PGE:

Don’t forget about your pets! As fun as the Fourth of July is for humans, all the commotion can be dangerous and stressful to animals. Keep your pets happy and safe with this guidance from the ASPCA:

With these tips in mind, you should enjoy a safe Fourth of July with family and friends.

California Dram Shop Laws


Dram shops refer to bars, liquor stores or other establishments that sell or serve alcoholic beverages. Dram shop laws concern the liability of establishments providing alcohol to an intoxicated person or minor who ends up injuring or killing a third party in an alcohol-related accident. For example, if a bar serves alcohol to an obviously drunk person, who later drives and hits someone, can the injured party sue the bartender?

In California, the law significantly limits the liability of people and businesses who serve or sell alcohol. You would not be able to sue the bartender who served alcohol to the person that injured you. The California Business and Professions Code Section 25602 states that bars are not responsible for selling alcohol to patrons who are obviously intoxicated.

The exception is if a vendor serves alcohol to an intoxicated minor who injures or kills someone else. The vendor could be accountable for the minor’s actions. Dram shop liability would apply and the injured person would be able to sue the vendor. The injured party could recover damages to pay for medical expenses lost wages, pain and suffering, and other significant losses.

Dram shop claims have a statute of limitations that restrict the amount of time you must file a case and seek compensation. In California, Dram shop claims must be filed within two years of the injury date. California enacted these laws because it is difficult to prove the actual cause of injury.

If you were seriously injured by a drunk driver, call Kershaw, Cook & Talley for a free case consultation at 888-997-5170.

US Supreme Court sides with Bristol-Meyers Squibb

Today, the Supreme Court of the United States ruled on a case that makes it harder for multiple people to bring their mass or class actions in one state court. A mass or class action involves people who suffer from the same general injuries that were caused by the same person or company. In this case, Bristol-Myers Squibb was selling a drug, Plavix, which damaged many people’s health. Hundreds of people from 33 states wanted to sue Bristol-Meyers, and they all wanted to bring their claims together in California court. However, many of them did not live in California, they were not prescribed Plavix in California, nor did they suffer any harm there. When you have this little contact with a state, it becomes very hard to establish jurisdiction, meaning it will be difficult to bring a lawsuit in that state court.

The general rule for bringing a lawsuit against a company in a specific state requires either that their injury take place there or there is some connection between that state and the company. You can also bring a lawsuit against a company in the state where they do most of their business or where they have their headquarters. In the case brought to the Supreme Court today, the plaintiffs were made up of California residents and non-California residents. These people thought that because they were all harmed by the same drug, same company, and had similar injuries, that they could bring all their lawsuits together in California. However, the Court did not agree with this. The Court said that there was no connection between the non-residents and California because their injuries occurred in different states and they were not prescribed the Plavix in California. Even though Bristol-Meyers sold Plavix there, that was not a strong enough connection for a non-resident to bring a lawsuit.

This ruling has a major effect on the hundreds or thousands of people who suffer similar injuries that want to file one lawsuit against a company. It will make it nearly impossible to bring a nationwide action in state court against a company who does most of its business in a state other than where the plaintiffs live. It will force people to bring separate lawsuits in separate courts, even though the issues they are arguing will be the same. It may come as no surprise that people will not want to do this because their claims are worth little on their own, but if they are allowed to bring it with other people, their claims will be worth a lot more. It will be interesting to see what effect this ruling will have on future class actions and how nationwide lawsuits are brought to court.

Sources:

https://www.supremecourt.gov/opinions/16pdf/16-466_1qm1.pdf

Opinion analysis: Justices reject California courts’ jurisdiction over claims by out-of-state litigants against out-of-state defendants

Is there a Cap on Medical Malpractice Liability in California?

You have the right to expect a high standard of care anytime a doctor or healthcare provider treats you. Medical malpractice occurs when a doctor or provider’s negligence of a patient’s treatment causes them harm. Examples include mistakes in treatment or improper diagnoses.  Filing a medical malpractice claim holds the doctor accountable for their actions or inactions.

There is a specific deadline, a certain number of years, for filing any medical malpractice lawsuit against a healthcare provider. This deadline is the statute of limitations. Once the statute of limitations on a case “runs out”, the claim is no longer valid.

California’s statute of limitations to file a medical malpractice lawsuit is 3 years from the date of one’s injury, or one year from the date the injury was discovered or should have been discovered. There are some exceptions to the statute of limitations depending on the status of a minor or on other circumstances of the case.

The Medical Injury Compensation Reform Act (MICRA) of 1975 tried to lower any medical malpractice liability and place a limit on the amount of damages a victim can recover from a claim. Non-economic damages, or damages related to pain and suffering or any loss of enjoyment of life, are capped at $250,000. Depending on the overall settlement amount, there is also a limit on the fees attorneys can recover.

If someone is successful in their medical malpractice lawsuit, they can be paid in full upfront or in the form of periodic payments. Periodic payments are established under California statutory laws, and allow healthcare providers to pay their victims’ awards over time.

If you were seriously injured, due to a doctor’s or healthcare provider’s negligence, call our personal injury attorneys for a free consultation and case evaluation. A personal injury attorney can help victims recover damages for their injuries including medical bills, pain and suffering, and lost income.

Can I Sue if I am Injured at a Sporting Event?

Photo: Quora.com

We are in Major League Baseball season, and if you were planning on catching a game sometime this summer—you should probably watch out for foul balls. According to a Bloomberg study, an average of 1,750 fans are injured by foul balls and broken bats at Major and Minor league ballparks each year. Unfortunately, flying sports equipment isn’t the only thing that can injure spectators at baseball games. If you’re one of the unlucky few to get hurt at a sporting event, you can potentially file a personal injury lawsuit to recover for your injuries. There are a few points to keep in mind.

Legal Rights of Those Injured

A sporting event personal injury lawsuit will most likely be based on a theory of negligence. Owners and operators of sporting venues owe spectators a duty to act reasonably and protect against foreseeable harms. If this duty is breached and a spectator is injured as a result, that spectator has a decent claim for negligence against the venue. However, sporting venues are likely to have a few defenses against this claim:

Assumption of Risk

“Assumption of risk” acts as a complete defense to negligence in California. If the sporting venue can prove that the injured spectator knew of and appreciated the risk of injury and voluntarily encountered it anyways, the possibility of recovery will be eliminated. For example, if you attend a baseball game and sit in a seat that isn’t protected by a net—you may have assumed the risk of being hit by a foul ball. However, you probably did not assume the risk of being hit with a flying hot dog, as that occurs far less frequently.

Waiver of Liability

Spectators effectively sign a “waiver of liability” by purchasing a ticket. If you have purchased a ticket to a sporting event recently, this waiver is probably printed on the back of it. These waivers, however, may be difficult to enforce depending on the circumstances, and they do not release venues from all types of liability. If your ticket contains one of these clauses, you may still be able to recover if you were injured.

Comparative Fault

If a spectator is partially at fault for their own injury, engaging in risky behavior like excessive alcohol consumption, the venue is likely to use “comparative fault” as a defense. The good news is that in California, the plaintiff’s recovery will only be reduced by the percentage they are at fault. For instance, if you were 60% responsible for your own injuries, you can recover the remaining 40% from the venue if they were also negligent.

If you want to file a claim, it is a good idea to talk to a lawyer about your options since personal injury lawsuits and the defenses are complicated. At Kershaw, Cook & Talley, we have decades of experience representing clients in negligence actions, nationwide. If you were seriously injured at a sporting event, due to venue negligence, call us for a free case evaluation at 888-997-5170 or fill out the confidential contact form on our website.

What is a Mass Tort?

Most people have heard the term class action. In fact, there were many in the last few years. The term mass tort, however, is seldom heard outside of the legal community—although these types of cases are equally as popular. So, what is a mass tort?

A mass tort is a type of civil litigation that works similarly to a typical negligence or personal injury suit—just on a much larger scale. Mass torts commonly involve a large number of plaintiffs suing a common defendant. The injured plaintiffs may have the same type of injury, or varied injuries, that arose from the wrongdoing of the same defendant. Often, mass torts will arise when multiple people are injured by the same defective product—like pharmaceuticals, medical implants, or cars.

The key difference between mass torts and class actions is that plaintiffs in mass tort actions are treated as individuals, and must prove certain facts particular to their case in order to prevail; whereas plaintiffs in class actions are treated as a singular class represented by a class representative and oftentimes do not need to prove any facts particular to their case. Class actions require common questions of law and fact for the entire class and that each member suffered the same typical type of injury. Mass torts are more common where the injuries suffered by each plaintiff are unique and the facts of each case differ, so it would be fairer to represent each person individually.

Joining all the injured plaintiffs together in a mass tort proceeding alleviates some of the burden on the courts. Instead of hearing hundreds of individual cases,  one court can preside over many cases in one coordinated proceeding allowing the two sides to litigate the case more efficiently.

Mass torts are extremely large and complicated civil actions—so it is important for legal counsel to have experience in these types of cases. Kershaw, Cook & Talley has recovered over $1 billion in mass torts, class actions, and other complex civil litigation matters. Call our office at 888-997-5170 for a free case evaluation today.

Boating Safety Tips to Help You Stay Afloat

 

Photo: Trip Advisor

Summer is here and it’s a good time to get out on the water. If you are planning on going boating with your friends or family, it’s always important to remember your safety guidelines. Whether you are an experienced boater or this is your first time, here are some tips to help keep you safe:

  1. Always check the weather before you go out on the water. Incoming storms or high winds can make your boating trip dangerous.
  2. Bring lifejackets and make sure they properly fit on each passenger. Please wear your lifejackets!
  3. Avoid alcohol. Although it may seem appealing at the time, summer heat and alcohol are not a good mix and can increase the risk of danger if anything were to happen. Alcohol also impairs your reaction time and your ability to control the boat properly. Make sure you know how to swim. Not only is knowing how to swim important for your personal safety but also in the event of a drowning emergency. Drowning is one of the most common causes of accidental death in children. Therefore, swimming is a life-saving skill.
  4. Boat lighting is essential. Specific lighting is required for vessels operating between sunset and sunrise or during times of restricted visibility. This will help other boaters see you and help with your vision. It is your responsibility to ensure your boat is equipped with proper lighting.
  5. Inform a friend or family member where you’re going on the water. Let them know when and where you’ll be boating, the names of everyone with you, and their emergency contact information.
  6. Be “boat smart”. You and your guests should know boat operations and safety procedures before getting on the water.
  7. Use common sense! Go at safe speeds, know when to stop, and know when to turn back to shore.
  8. Never get into the water or climb back on board the boat while the engine is running.  Make sure the engine is off whenever someone is in the water, especially in the zone of danger which extends 30 feet all around the boat; turn the motor off, remove the keys, and wait until the propeller stops spinning.

These are not the only things to consider while boating, but are some of the major factors to consider when you’re planning a boating trip. If you or someone you know has been injured in a boating accident, you can contact our law firm, Kershaw, Cook & Talley, at (916) 779-7000. Help keep yourself and those around you safe!

Sources:

Sailing Safety Tips. https://www.boat-ed.com/california/studyGuide/Sailing-Safety-Tips/10100501_700050311/

Boating Safety & General Information. https://www.parks.ca.gov/?page_id=18578

Defective & Dangerous Products

Chicago Medical Malpractice Lawyers

The attorneys at Kershaw, Cook & Talley successfully represent consumers in lawsuits against manufacturers and companies involving defective products and product recalls. Our experienced trial attorneys recover thousands of dollars on behalf of injured individuals in cases involving defective medical devices, dangerous drugs, car defects and more.

Referring Attorneys

Best Chicago Medical Malpractice Lawyers

At times, attorneys require further expertise and resources, legally and financially, to resolve a legal matter. We have the team, capability and dedication to handle challenging cases. If you have a case exceeding your resources with respect to workforce or experience, consider contacting our firm. We welcome referrals from firms in Sacramento and throughout the United States.

Our Services

Medical Malpractice Lawyers, Kershaw, Cook & Talley

We provide free case consultations. If you, or a loved one, suffered an injury due to another’s negligence or wrongful conduct, call our firm. We will examine your individual situation and explain your legal rights. Our attorneys have extensive experience representing injured individuals, in both jury trials and settlement negotiations.

Personal Injury Attorneys, Personal Legal Service.

Kershaw, Cook & Talley is a Sacramento law firm founded on the principle of helping our clients through personalized legal services. With this philosophy, Kershaw, Cook & Talley has garnered a statewide and national reputation for providing outstanding legal representation and obtaining significant compensation for our clients.

Nationally Recognized Personal Injury Law Firm.

We understand personal injury cases are often emotionally and financially straining. Our team of top personal injury attorneys in Sacramento is committed to seeking justice for individuals injured as a result of another's negligence or intentional misconduct. At Kershaw, Cook & Talley, our experienced personal injury attorneys will hold the responsible parties accountable for their actions.

CLIENT TESTIMONIALS

“Bill and Stu worked expeditiously to get my hip claim resolved.
I couldn’t believe how personable they were and easy to contact.”

-S. Thomas

“Stuart helped me with a case involving a defective hip replacement. He was incredibly responsive to my calls and concerns and really kept me updated on what was going on in the litigation. Even though his office was not in my hometown, he actually flew out to meet with me. He was incredibly knowledgeable about the case and really helped me through a very difficult time.”

-Personal Injury Client, as seen on AVVO

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