The Lombardi Law Firm Blog

Popcorn Lung for Iowa Workers

A verdict by a Sioux City, Iowa jury awarded $7.5 million for the death of a worker after he developed a rare lung condition, broncholitis obliterans. The worker was a butter flavor mixer with American Popcorn Company.

Ronald Kuiper, who passed away on Wednesday afternoon, was formerly employed at American Popcorn Company as a butter flavor mixer. He had been diagnosed with the rare lung condition called broncholitis obliterans, which has been linked to artificial butter flavor exposure.

The product and chemical is butter flavor containing diacetyl, a chemical which has been found by the National Institute of Safety and Health to cause severe lung injury.

OSHA: HAZARD COMMUNICATION GUIDANCE FOR DIACETYL AND FOOD FLAVORINGS CONTAINING DIACETYLHAZARD COMMUNICATION GUIDANCE FOR DIACETYL AND FOOD FLAVORINGS CONTAINING DIACETYL

NIOSH Science Blog: Diacetyl and Food Flavorings

A Case of Regulatory Failure - Popcorn Workers Lung

NC Dept. of Labor: Hazard Alert

Choice of doctor bill isn’t about choice so much as it’s about controlling the outcome

The choice of doctor bill in the Iowa Senate is getting a lot of press lately. There are stories here, here and here. After 28 years of practicing workers compensation I’ll throw in my two-cents, for what it’s worth. I’ll warn you at 54 I’m cranky, have little tolerance for being patronized and say it like I see it. If that’s too much for you then you needn’t read any further.

The Issue: Iowa’s workers’ compensation laws don’t allow the injured worker the right to choose the treating physicians. Treating physicians under Iowa law are selected and paid by the employer; which in many instances is a workers’ compensation insurance company. There are a few self-insured manufacturers in Iowa; they tend to be quite vocal about wanting control over selecting the company doctor.  There is a bill before the Iowa Senate that would change which party has the right to select the treating doctors. The bill would allow injured workers the right to say which doctor can cut on them. Now you know the issue – it’s who will pick and then pay for medical treatment.

The employer’s position is being stated in the Des Moines Register by someone from Pella Corporation. Pella is a good business in Iowa and no one would want to see them go. Being a good corporation is only part of the game though; being a good citizen is also essential. When employers say it’s about getting the injured employee to the right doctor I find it hard to believe. Qualified doctors are all around Iowa. This isn’t Tanzania, Africa. We are talking the Midwestern United States. This isn’t about an employee picking his or her family doctor versus the employer having specialized knowledge and access to which doctors know best how to treat a particular injury. Let’s not patronize the people of Iowa. Posit all you want but let’s not be insulting to the good people of Iowa and their elected officials; they weren’t born yesterday.

Here is what I mean:

“Myron Lynn, compensation manager for Pella Corporation, says the doctors companies choose are familiar with the kinds of injuries workers suffer and can save time in diagnosing injuries a family doctor rarely sees. "It's access to quality medical care, getting the person quickly to the right doctor whose specialty is treating the kind of injury that the individual has, working with the physician to get the person back to work as quickly as medically advisable to do so," Lynn says, "and back to full wages."

The position Mr. Lynn states is disingenuous at best. Those doctors the employer selects aren’t specialists that only they have access too. Injured workers have the same access to any of the orthopedic surgeons available in the market place. What the employers really are talking about is controlling the words that the doctor speaks and when. The doctors know to sing the right tune or they won’t be on corporate America’s workers’ compensation dance card.

Here is what the employees face. They are injured, off work, earning 3/4rds of what they normally do and trying to make ends meet on the home front. Already nervous and facing an uncertain future they have little if any control over the medical care and opinions. They are totally beholden to this tug-of-war between the big insurance business, the AMA and some lawyer trying to help them get back to square one with the bills and work. Even if you’ve never been involved in such a claim you should be bright enough to figure out the little guy is backed into a corner with a six-shooter half loaded with bullets. You may wonder how bad it can get. Well allow me to give you one example. I’m familiar with a doctor in central Iowa who will treat an injured worker and as soon as the medical treatment is finished he is known to say the injury isn’t work related. Why would it take orthopedic surgeon months to come to the sudden realization an injury he’s treated for months is not work related? You may wonder why that is. Well it’s really pretty simple. There is no co-insurance or schedule of fees for workers’ compensation medical treatment. There is no trying to get the co-insurance payment from the patient or worse yet, a waiver of the co-insurance as negotiated by BCBS. In other words the reimbursement rate is higher. And why would the workers’ compensation carrier continue to send injured workers to this doctor. It’s all about money. They know these are compensable injuries. They know we know. But because they can generate a report from a ‘credible physician’ that says otherwise they have a 50-50 chance of walking away and paying less or even nothing.

Doctor’s Position: If a surgeon is licensed by Iowa’s Board of Medicine, then so be it they can slice and dice with the rest of them; it’s really about what comes out of their mouths at the conclusion of the doctor-patient relationship that matters to those who choose the “who”. Doctors aren’t dumb; they know how to get employers to keep sending them a stream of patients. If the doctors don’t cozy up the patient and limit their opinions on permanency, restrictions and when to send the injured patient back to work, then the steady stream will continue to break the threshold of the clinic entrance door. And they know that if they are too friendly in their opinions to the injured employee, then the clinic door bell will stop ringing. For the doctor’s it’s about paying the overhead. They are simply caught in the middle and probably want to be left alone to treat their patients without interference from case mis-managers, insurance mal-adjusters and attorneys trying to straighten out or to bend the facts.

Let’s not try to fool each other this isn’t about it having access to a better cadre of medical experts; it’s about controlling the expert opinions.  The doctors that regularly deal with workers’ compensation patients just want to know who to send the bill. Whoever has the out right choice rules the roost and they will suck up to either, just to get the bill paid. But what if they didn’t have to suck to either? Then what?

Employer’s Position: If Pella Corporation really wants to do what is right by their injured employees then they would allow them to choose their own doctors, but they don’t and won’t. And all of us involved in the system know why.

Employee’s Position: Many of these employees have serious medical conditions that require surgery that can kill them. Many employees feel degraded by this system that takes from them the right to be taken seriously. It’s their body. They should have the absolute right to say who gets to cut on it.

The Iowa Industrial Commission Position: When they are awake they are sick and tired of seeing what they see and hearing what they know to be true but politically they aren’t allowed to voice. If it were them they would want to know they had the choice of which surgeon to choose. That said they don’t want any more work and would rather see a system in place that reduced the tension and acrimony within these claims.

The Politicians Position: The politicians just want the campaign contributions to keep coming in. This isn’t brain surgery. Employees don’t contribute like the Iowa Medical Association contributes to political campaigns. And politicians don’t worry about “the employer” selecting their treating physicians. After all they get special handling by insurance companies. When did any politician not get to  select their doctors?

“Republican Sen. Pat Ward of West Des Moines said she thinks those are isolated incidents.

“There’s no question that misdiagnosis occurs on occasion and that’s a very sad thing,” Ward said.

Ward predicted that one of every 100 injured workers is satisfied with their care from their employer-chosen doctor. To change the law would add unnecessary expense for businesses, she said.”

I believe there is a better way.

The “Pool of Doctors” Solution: Here is a solution falling somewhere in between what both want. Let’s first set forth each of their positions. Any doctor could apply to the Iowa Industrial Commission for privileges to be in a workers’ compensation medical pool. Any doctor in the medical pool could be selected by the employee for appropriate treatment. The employers would have the right to object to any doctor in the pool but once into the pool the employee could select them for treatment.

A pool of doctors would give the employer the right to encourage all of their company doctors to submit their names into the pool. The employees would not be allowed to go outside the pool unless doctors within the pool were not qualified to treat the condition or didn’t have privileges in the hospital system where the employee resided. Physicians outside the pool could be selected by agreement or application to the Industrial Commission.

Truthfulness would be restored to this system and doctors like Dr. No Causation would find themselves out of work.

Who chooses the Medical Care? 

The employer provides medical care reasonably suited to treat the employee’s injury, and has the right to choose the medical care. If the employee is dissatisfied with the care offered, the employee should discuss the problem with the employer or insurance carrier. In certain situations the employee may wish to request alternate care. If the employer, or insurance carrier, does not allow alternate care, the employee (through appropriate proceedings) may apply to the workers' compensation commissioner for alternate medical care. (85.27)

If the employer-retained physician gives a rating of permanent impairment, which the employee feels is too low, the employee does have a right to another examination by a doctor of the employee’s choice at the employer’s expense. (85.39)

What types of benefits does the law provide?

Medical Benefits - The law provides for the payment of all reasonable and necessary medical care incurred to treat the injury. This includes reasonably necessary transportation expenses. Mileage for use of a private auto is reimbursed at a rate set by the state of Iowa, currently at 58.5 cents per mile. (85.27)

Under certain circumstances an employee who has to leave work for medical treatment may be eligible for payment of lost wages. (85.27)

While a contested case proceeding or a dispute on reasonableness of a fee is pending, the medical care provider cannot seek payment of its charges from the employee. (85.27)

An updated list of the most recent wrong-way collisions on the interstate highways

We’ve been covering wrong-way collisions for the month of July and have continued to update during the month of August in 2009. This is the second update since writing the wrong-way series that started on August 3, 2009. You can read the complete list of wrong-way collisions in the recap posted on August 15, 2009.

Part 1 of 20 - Wrong-way Interstate Collisions, Don't blink a car is ready to hit you head-on, August 3, 2009

Wrong-Way Accidents - Complete Recap of All July 2009 Collisions, August 15, 2009

Twenty-Six More Wrong-Way Interstate Highway Drivers, August 18, 2009

Analyzing July 2009 Wrong-way High Speed Collisions in America, August 3, 2009

Wrong-Way Accidents: Call for articles, posts, studies and related information on wrong-way drivers – ghost drivers!, June 23, 2009

Wrong-way drivers on I-80 Interstate are a problem, June 3, 2009

Here is the update for wrong-way collisions for this series with Devon Glass and Dave Mittleman from Michigan and Wayne Parsons from Hawaii Injuryboard. Wayne, I’m wondering aloud if you see many wrong-way driver collisions on any of your three highways? And Devon, what are you seeing in the Michigan area on the Interstate highway system? I’d like to hear what if anything Mike Bryant is seeing in that maze of Interstate highways around the Twin Cities of Minnesota. And maybe we can get an Al Franken report.  In fact before we get too serious, these wrong-ways tend to be extremely deadly, let’s start out with that YouTube video of the talking fish from the Franken-Coleman Senate race. I love that talking fish ad. It’s gotta be a classic.  Sorry Norm (we attended college together at the University of Iowa) but this is way too funny to leave alone.

Now back to the serious stuff about wrong-way drivers. We’ve had a wrong-way collision not more than ½ a mile from my house on I-35 southbound. It’s at the end.

Detroit, Michigan – August 28, 2009 wrong-way collision on Lodge Freeway. A 31-year-old man died after he drove the wrong-way. Accident occurred at around 12:45 a.m., driving southbound. Alcohol is believed to have been a factor.

Haltom City, Texas – August 28, 2009 – State Highway 121 wrong-way driver collided head-on with a semi-truck and was killed. This man was heading north in the southbound lanes around 2 a.m. This driver safety stopped in the emergency lane, but when police approached he took off, again the wrong-way colliding with the semi-truck. Additional details were provided by the Star-Telegram. The wrong-way driver was 53-years of age. A map and video are available with WFAA Latest News.

Pittsburg, Pennsylvania – August 27, 2009 -  No deaths in this southbound wrong-way driver in the northbound lanes of traffic in the HOV lane of Parkway North near the McKnight Road ramp. There was personal injury and OWI charges were pending against the wrong-way driver.

Allentown, Pennsylvania – August 27, 2009 – This wrong-way collision occurred around 3:30 A.M. at 8th and Linden Streets when the driver turned and drove the wrong way on Linden Street. One man was killed and another seriously injured.

St. Louis, Missouri – August 26, 2009 – In this wrong-way collision three died and one was injured on Illinois 255, about 11/2 miles north of I-270. The wrong-way driver is reported to be a 46-year-old man driving with a revoked license with multiple arrests and six convictions on alcohol related offenses. He lived, but the driver and a passenger in the other car were killed. Emergency calls shortly before this collision reported a wrong-way driver heading south in the northbound lanes of I-255 and then another call came in reporting a car heading north in the southbound lanes. Confused or drunk driver, you be the judge.

Detroit, Michigan – August 28, 2009 – A 28-year-old man was driving northbound in the southbound lanes of M-10 near Larned. The driver died and a passenger in the wrong-way vehicle was taken to the hospital and listed in fair condition. Alcohol was reported to be a factor, according to reports of what the police said.

Maderia, Ohio - August 28, 2009 – This wrong-way collision occurred on I-71 involved a 27-year-old driver and two passengers, one 18 and the other 24. Drugs and alcohol are believed to have been a factor.

Maderia, Ohio – August 2009 – In this second wrong-way crash in a two-day period a 64-year old man died after driving head-on into the wrong-way driver. The driver of the wrong-way car was a 33-year-old man. The crash involved a third car driven by an 18-year-old who was not injured. This one occurred on I-275 just before 2:00 a.m. Saturday morning.

Milford, Oakland County, Michigan – August 26, 2009 – Police report this collision was caused by intentionally driving the wrong-way by a young girl (16-year-old) who was depressed over her father’s death in November. She took her mother’s SUV and drove the wrong-way in the westbound lanes of I-96 near Lansing. She drove head-on into a semi-truck at around 9:25 p.m. She left a note saying she was tired of being depressed and wanted to see her father.

Birch Run, Michigan – August 26, 2009 – I-75 was the scene of this wrong-way driver that involved a man intentionally driving the wrong-way while police chased him in a stolen vehicle. The driver was 22-years of age.

Allentown, Pennsylvania – August 26, 2009 – This wrong-way collision happened in downtown Allentown at 3 a.m. Not much detail was given in this report although it appears to be a one-car crash with the driver dying and the passenger critically injured. They crashed into several fixed objects including a parking garage and a restaurant.

Boston, Massachusetts – August 23, 2009 – The 42-year-old wrong-way driver was being chased by police when he intentionally drove the wrong-way on state highway 24 and I-495. No one was hurt although the chase went on for nearly a half-hour.

Landrum, South Carolina – August 22, 2009 – The 33-year-old wrong-way female driver collided head-on with another vehicle. The collision caused one death, one person was seriously injured and the wrong-way driver was charged with “two counts of felony driving under the influence of alcohol -- one count involving great bodily injury and one county involving death.” The driver was heading westbound on I-26 near mile marker 2 near Landrum around 5:20 a.m. A front seat passenger was reported to have died.

Edmonton, Canada – August 22, 2009 – A wrong-way driver heading south in the northbound lanes of Wayne Gretzky Drive was operated by a 49-year-old woman reported to be impaired by alcohol.

Hickory, North Carolina – August 18, 2009 – The report is of an elderly couple (driver was 75) driving the wrong-way (northbound in the southbound lanes) on U.S. 321 just before 2:00 p.m. They drove head0n into a pickup truck killing the elderly driver and severely injuring his wife, a passenger.

Ontario, California – August 20, 2009 – This wrong-way driver died after striking a tow truck on Highway 60. The female driver was heading west in the eastbound lanes when the head-on crash occurred.

New Orleans, Louisiana – August 19, 2009 – It seems no state is immune to wrong-way driving, well maybe North and South Dakota. In this wrong-way collision in the eastbound lanes of I-12 a young female driver drove head-on into an 18-wheeler killing her. She drove the wrong-way for at least 6 miles. Police suspect alcohol was involved. The driver was not wearing her seatbelt and was ejected from the vehicle.

West Des Moines, Iowa – I-35 northbound in the southbound lanes of traffic. The wrong-way driver was not killed but the driver of the car struck head-on was killed. The explanation for this collision is that the wrong-way driver was suffering from a diabetic condition and became confused, entered the wrong-way on Highway 5 and continued all the way off 5 and onto I-35 heading north in the southbound lanes.

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Interstate Highways and Wrong-way Collisions, the Carnage Continued...

One last point to be made is that people have it all wrong when it comes to saving money. The notion there are too many lawsuits makes about as much sense as there are too many doctors treating cancer patients. There aren't too many cancer treatments, there is too much cancer. And the same goes for the disease of distracted or drunk driving; there aren't too many lawsuits, there are as many lawsuits as there are drunk and distracted driver accidents. The fact is there are fewer lawsuits than accidents. The correct question is why are there so many accidents; not lawsuits. Take away only the number of lawsuits and you encourage more drunken and distracted drivers to plow into you. If you want to reduce the number of lawsuits stop driving drunk or distracted. It's that simple.

Here is the series so far on Interstate Highway crashes and how to avoid them:

Are Double-Bottomed Semis More or Less Dangerous to You? - Devon Glass from Church Wyble, P.C. (Michigan), August 26, 2009

Who wins and loses when a Ford Focus and a fully-loaded semi-truck crash? - Steve Lombardi from The Lombardi Law Firm (Iowa), August 25, 2009

Hawaii Freeway Chronicles #1: What Are The Danger Points On H-1, H-2 and H-3?, by Wayne Parsons of Wayne Parsons Law Offices. (Hawaii), August 27, 2009

The Interstate Highway Graveyard, “Speed Kills”, Lombardi, August 28, 2009

Why Speeders on the Highway Cause More Serious Accidents, Glass, August 28, 2009

Death and Injury On Interstate Highways Increase With Higher Speed Limits, Wayne Parsons,  August 29, 2009 2:31 AM

When you're riding your bike to work, be prepared for the unexpected.

In an article in Here New Brunswick Urban Voice, called “Overcoming the fear of cycling”, Andrea Laltoo discusses being a bicycling commuter and the dangers often linked to habitual biking on the road with motor vehicles. Laltoo brings up the most asked question, "But isn't it dangerous?" which she answers “yes” but not for the obvious reasons most people assume. An obvious fact that bicyclists are not as protected as motor vehicles by seatbelts, airbags, and metal frame coverings, does cause bicycling to have a higher danger factor. Laltoo also considers:

“Cycling can even result in death (then again, so can eating a sandwich, if you choke). But is cycling along with traffic really as dangerous as our imaginations tell us "..." or is the fear of cycling an irrational phobia of stepping outside of our comfort zones?”

Laltoo then mentions another bicyclist advocate, Ken Kifer who has a website devoted to facts and details of bicyclist safety and lifestyles, as well as tips on bike safety in traffic, (see http://www.kenkifer.com/bikepages/traffic/index.htm). One of Kifer’s ideas is interesting to Laltoo, “most people are aware that flying is statistically safer than driving (when analyzing risk of fatality per passenger and per distance). Why, then, do we drive without giving a second thought to our safety and yet flinch at flying?” This idea of flying as more dangerous than driving may be described as what “Nancy S. Blum, a social worker with University of Iowa Hospitals and Clinics, cites lack of control over the situation as the number one reason her patients fear flying.”

When it comes to car transportation, drivers are given many, many hours of training to be allowed to drive, as well as have direct control over the vehicle. As for biking, one has control over the moving object, but people are not given specific and detailed training on how to operate the bike and navigate the roads on the bike.

The real facts on bicyclist injuries on the road are not necessarily due to traffic, Laltoo cites “John Forester (founder of the Effective Cycling program)” who says, “50 per cent of cycling injuries and deaths were caused by cyclist error, compared with only 8 per cent caused by motorist error”. Though this does not take away the fact bicycling is still a safety risk, it is mostly through the control of the individual biker themselves. Laltoo promotes biking as a main form of transportation as it being safe, if one takes control over their biking skills and knowledge.

With more people wanting to save money and the environment, the bike becomes a good option for transportation. But with less than adequate skills, knowledge, and experience on a two-wheeled contraption, bikers may cause more harm to themselves than they realize if proper steps are not taken.

Keep this in mind the next time you hit the road on your bike. Where your helmet and if necessary a rear view mirror. I've been hit by a truck when training for a triathlon. Believe me it's not a pleasant experience. It was about mid-morning, time for the donut break when the approaching truck suddenly turned left right into my path. The rear duals didn’t look all that appealing, the passenger side of the cab uninviting so off I went trying to skirt along the front. He hit me directly in the center of the grill, sending me head-over-heels attempting a full gainer. I landed squarely on the high side of my butt. Days later it looked like I was carrying around a baseball in my back pocket. I broke no bones, chipped some teeth when I kissed the grill, and was plenty sore for weeks. The funniest part was when the cemetery manager straddled and asked if he could call someone for me. I gave him the law firm telephone number. On the way to the hospital I asked the ambulance attendant if I could use the phone. Calling my office, the secretary Julie told me the insurance company called in less than five minutes after the cemetery manager hung up. Never hit a guy who makes living as a personal injury lawyer. So now I get to honestly say I’m not an ambulance chaser, I’m always there before the ambulance.

Pedestrian Safety: To avoid being hit you need to keep your head on a swivel.

Do you want to see what it looks like when a car strikes a pedestrian? Watch this video of and you won't cross the highway the same way as a pedestrian.

Now you’re on the roadside after breaking down, you pull out your cell phone, call triple A and the tow truck arrives. The operator exits his truck and wham! He’s suddenly struck by an oncoming car. Unbelievable, you say.  Not so.

Santa Clara, California – December 2008 - My friend John Bisnar from California blogs about an instance of a ground crew mechanic working on the ground near a helicopter. A wind gust blows over a helicopter, causing it to spin out of control, and a blade struck the mechanic, killing him.  This helicopter was being used by the power company to string power lines between poles. Interesting to say the least and it explains why the worker would not be so concerned with keeping his eye on the helicopter. This workers attention needed to be focused on whatever his job may have been that day.

Pana, Illinois – January 2009 – Clothe colors can make all the difference.  Reflective tape also helps. In this case the truck driver was unable to see the man walking along Illinois highway 29. The man was struck and killed. The driver explained with the darkness, 7:30 p.m. he was unable to see the pedestrian walking. What this 60-year-old man was doing walking on the side of the highway we don’t know but we do know the driver was unable to see him.

Vancouver, Canada – November 2008 – A garbage truck struck and killed a pedestrian just after noon while he was walking. We’ve had this happen right here in Des Moines, Iowa.

Tama, Iowa – April 2009 – I reported on a young Iowa woman who was struck and killed by a train. This train-pedestrian accident has striking similarities to the story written by James Joyce in Dubliners. A Painful Case is a short story about Mr. Duffy who rebuffs Mrs. Sinico, and then four years later realizes he has condemned her to loneliness by rejection and then death. This realization strikes him while reading her obituary that describes her death being caused by a train as she walked across the tracks at Sidney Park, a train station on Sidney Parade Avenue, in the village of Merion, southeast of Dublin.

Barbara and I sojourned to Dublin for a two-week drive around the southeast and west until we found our way back to the streets of Dublin and more specifically, Fleet Street and the Temple Bar District. Ah yes, sit will you for a pint of Guinness?

Another DART bus-pedestrian collision in downtown Des Moines

On July 9th 2009 Veronica Lima of West Des Moines was dropped off on 9th and Walnut when DART bus driver Robert Delpierre allegedly failed to yield the right of way and then stopped right on her leg. Now that’s an ouch-moment beyond the imagination. When Mr. Delpierre was asked if he could back up the report says he appeared in shock and while there has been speculation about whether Ms. Lima was in the crosswalk or not, witness Scott Vanscoy is quoted as saying, “It shouldn’t have happened, she had the right away”. On the Des Moines Register message board a message left by a Vanscoy (Scott Vanscoy?) had this to say, “This woman was in fact in the cross walk, I saw her there. And the comment about him holding her hand until paramedics arrived...My only memory of the driver being there was when he initially came over and proceeded to scold the victim for not watching where she was going! Your comments are just about as sickening as the drivers!”

To further support her case it seems that these accidents are common when the DART bus drivers are making left hand turns as this is the 6th such incident involving accidents when making left hand turns since 2007. With the number of accidents it makes citizens wonder if their training is sufficient or if something else is going on. Are the pedestrians not watching out as well? Are the drivers and pedestrians making eye contact to know each knows the other is aware of their presence? If not, how about if one or both stop.  While the bus agency’s general manager said that she was not in the crosswalk he admitted that the accident was going to force them relook at having all drivers make only right hand turns in order to avoid any further incidents.

Yet another bicyclist and car collide in Des Moines

Pedestrian Safety: Des Moines pedestrian struck by car at Court and Second Avenues.

Another pedestrian was struck by a car and injured in Des Moines. This car-pedestrian collision occurred at the intersection of Second Avenue and Court Avenue at 4:30 p.m. on Monday, May 11, 2009. The driver apparently didn’t see the woman. The woman was struck then hit her head on the street. She was taken to Mercy Medical Center in Des Moines.

Des Moines has been having quite a few pedestrian-car and pedestrian-bus and pedestrian garbage truck accidents of lately. There was no mention of whether cell phones or iPods played any role in distracting either driver or pedestrian.

Pedestrian safety is nothing to ignore.

Iowa bicycle safety: Senate File 117 may still have legs for the tour de Des Moines, RAGBRAI

In today’s news we reported about a child killed while crossing the street. Here is what we reported.

With so much to look for its surprising more pedestrians aren't killed. Pedestrians treat the streets like they were in a movie. Be careful out there. Megan Roth wrote a pretty good article about traffic and how frustrating they can be. I've written about the weather conditions. It seems in this case the downpour is a factor to consider.

Senate File 117, passed the Iowa Senate but isn’t expected to pass the House before this session ends.  Senate File 117 is a law that would offer bicyclists more protection from cars, trucks, motorcycles and buses that use the public streets.

The Des Moines Register has been carrying this story about Senate File 117 and you can follow the links to read the three stories.  One, two and three.

Added Mark Wyatt, executive director of the Iowa Bicycle Coalition: "The bill is not about special rights for bicyclists. Rather, it clarifies that cyclists have the same protection as vehicles in the Iowa Code."

Records show Sherman had the green light to cross the intersection of 44th Street and Lincoln Avenue at 6 p.m. on March 3, a clear day. "All of a sudden, I see a car in my face," Sherman said.

The car had tried to make a left turn. Sherman hit a headlight, took off the driver's side mirror, then flew into a solid object, which he suspects was a telephone pole. He bruised a lung and broke bones in his shoulder, rib cage and spine.

The police report clearly shows the driver was at fault, said Maj. James O'Donnell of the Des Moines Police Department. No ticket was issued, partly because there was no intent by the driver to harm Sherman, he said.

The bill may be assessed below or by following this link.

The gist of the legislative measure: Changes the nature of riding a bike on the public roads to, as some would say an even playing field.

The proposed law would give the bicycle rider equal access to the full use of the lanes of travel, would require passing a bicycle under the same rules as is now in place for passing other motor vehicles, would add bicyclists to the following too closely rules, would allow or require bicyclists to use hand signals to turn, would treat bicyclists like pedestrians when on the sidewalk or a recreational trail and car or truck intends to exit a driveway across the sidewalk; and finally would make bicycles a protected class when opening the door to a parked car.  

Roads were originally constructed for commerce rather than pleasure, in that commerce is what paid the costs and allowed commerce to develop generating more tax revenue for governments.

  A BILL FOR

  1 An Act relating to the operation of bicycles on a street or

  2    highway, providing requirements for motor vehicle operators

  3    encountering other vehicles or bicycles, and providing

  4    penalties.

  5 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

  6 TLSB 1600SV 83

  7 dea/nh/14

PAG LIN

  1  1    Section 1.  NEW SECTION.  321.297A  USE OF TRAFFIC LANES BY

  1  2 BICYCLES.

  1  3    1.  A vehicle shall not be operated in a manner depriving a

  1  4 bicycle operator of the full use of a lane if the lane is of

  1  5 insufficient width for the vehicle and a bicycle to share.

  1  6    2.  A violation of this section is a simple misdemeanor

  1  7 punishable as a scheduled violation under section 805.8A,

  1  8 subsection 6, paragraph "b".

  1  9    Sec. 2.  Section 321.299, Code 2009, is amended to read as

  1 10 follows:

  1 11    321.299  OVERTAKING A VEHICLE OR BICYCLE.

  1 12    The following rules shall govern the overtaking and passing

  1 13 of vehicles proceeding in the same direction, subject to those

  1 14 limitations, exceptions, and special rules hereinafter stated

  1 15 otherwise provided in this chapter:

  1 16    1.  The driver of a vehicle overtaking another vehicle or a

  1 17 bicycle proceeding in the same direction shall pass to the

  1 18 left thereof of the vehicle or bicycle at a safe distance and

  1 19 shall not again drive to the right side of the roadway until

  1 20 safely clear of the overtaken vehicle or bicycle.

  1 21    2.  Except when overtaking and passing on the right is

  1 22 permitted, the driver of an overtaken vehicle shall give way

  1 23 to the right in favor of the overtaking vehicle and shall not

  1 24 increase the speed of the overtaken vehicle until completely

  1 25 passed by the overtaking vehicle.

  1 26    3.  When a vehicle is overtaking and passing another

  1 27 vehicle or a bicycle, the operator of the overtaking vehicle

  1 28 shall maintain a distance of not less than five feet from the

  1 29 other vehicle or bicycle.  This subsection does not apply to a

  1 30 farm tractor or fence=line feeder.

  1 31    Sec. 3.  Section 321.307, Code 2009, is amended to read as

  1 32 follows:

  1 33    321.307  FOLLOWING TOO CLOSELY.

  1 34    The driver of a motor vehicle shall not follow another

  1 35 vehicle or a bicycle more closely than is reasonable and

  2  1 prudent, having due regard for the speed of such vehicles the

  2  2 vehicle or bicycle and the traffic upon and the condition of

  2  3 the highway.

  2  4    Sec. 4.  Section 321.314, Code 2009, is amended to read as

accident attorney bike Des Moines iowa lawyer west des moines

Updated News on the Des Moines Hit-n-Run Car Accident

Wednesday afternoon on Park Ave. around 5:30, a motorcyclist was killed in a hit and run by a SUV, according to channel 13 news source. After filling up the Ford Explorer SUV at the Casey’s General Store at 4331 Park Ave with $27 worth of gas, Santos Vidal Rodriguez, the 26 year old driver, with 23 year old brother, Orlando David Rodriguez, drove away from the gas station without paying, and hit the motorcyclist east on Park Ave. The motorcyclist was Bruce James Mundy, age 49, a father of two who lived in Adel, and a 30-year military veteran, according to the Des Moines Register. Mundy was wearing a helmet while riding his vehicle but died at the local hospital he was brought to, said the Des Moines Register.

The two Rodriquez’s ran from the scene of the accident but were later caught. Surveillance tapes from Casey’s, which captured the accident, are aiding police in the investigation. They are faced with second-degree robbery charges and many traffic-related charges from the crash, though have not been charged yet, according to the Des Moines Register.

This accident has brought to the forefront the 1999 shootout near Martin Luther King Jr. Parkway and Forest Avenue, between police and Santos Vidal Rodriguez, the driver in this current case. The shootout began after Rodriguez’s car was pulled over for suspect in a robbery earlier in the day. Police Officer Jeffrey Gowen and Sgt. Garey Bryan II who were involved in the shootout were wounded and the then 16 year old Rodriguez “lost a leg and had brain damage”, reports the Des Moines Register. Rodriguez was never tried for this offense because “Polk County prosecutors believed his injuries made him incompetent to stand trial” and would never fully recover.

After this incident on Wednesday, Santos Rodriguez was interviewed by police and said he was fully coherent.

Watch a clip from the Des Moines Register of the accident, and interview of police officer, Sgt. Lori Lavorato:

http://gannett.a.mms.mavenapps.net/mms/rt/1/site/gannett-desmoines-150-pub01-live/current/launch.html?maven_playerId=articleplayer&maven_referralPlaylistId=playlist&maven_referralObject=1274639317

What are the legal options for a hit-n-run driver?

On August 26th 2009 a high speed chase ended in a crash leaving the female passenger inside with minor injuries. The Iowa State Patrol saw a van speeding along University Ave. near 13th street at about 2:30 a.m. The Trooper, John Salesbury, tried to pull the van over but the driver refused and a high speed chase proceeded. The chase lasted for about 3 minutes and ended on Chautauqua Parkway when the van crashed into a utility box. The driver of the van fled the scene as the Deputies were assisting the female passenger inside as the van was on fire. The as of yet unidentified man now has several warrants out for his arrest to go with the medical bill he will be receiving for the injuries suffered by the woman in the crash.

One has to wonder what makes a person run when confronted with a situation like this news item. Experience tells us people who run have done something wrong, engaged in criminal activity, stole the car, have warrants out for their arrest or else have immigration problems that make them avoid arrest. The best way to handle this problem is not to keep running but to schedule time with a lawyer who handles criminal matters. Todd Miler writes for this blog on occasion and handles criminal matters and would be one such person to discuss your options. Running is an endless lifestyle where you’re always looking over your shoulder.

Another day in paradise extended with 7th bus-pedestrian collision

I didn’t know it could happen so soon after the last one. But count them, the 7th pedestrian-bus collision in downtown Des Moines since July 2007. A 61-year-old woman was struck by a DART bus and taken to an area hospital. This is the second accident in just 19 days. The third or fourth one back cost the City of Des Moines Transit Authority $2.74 million.

William Holmes was struck in a crosswalk by a DART bus on Oct. 13, 2008 in downtown Des Moines.

Veronica Lima, 54, is still in the hospital after she sustained leg injuries on July 9, 2009.

Just last week, it’s being said that DART settled a lawsuit with Emily Abrahamsen. Ms. Abrahamsen’s pelvis was crushed in August of 2007 when she too was hit by a city bus.

I’m not sure but if this is pedestrian hunting season my guess is DART has exceeded its bag limit.   

Driver Safety: Teens need to stop and think before getting behind the wheel.

Lawyers deal in the facts about car, truck, ATV, boat, truck, motorcycle, moped, pedestrian, skateboard and other types of roadway-street-avenue accidents than many people. We see it and we hear about it. We read about it and talk about it. We discuss it with Judges, juries, adjusters, other attorneys and clients. We see way too much of it. And so we know that like Tennessee's Governor talking to teens in that state, the same message applies to Iowa teens.

I've raised four teenagers all of whom drove and had accidents. I watch teenagers talking on the cell phone, texting and simply not paying attention. And that's the key, paying attention. You have to pay attention rather than try to do everything but pay attention to what is going on in traffic. It's irritating to other drivers for someone to be yakking on the phone, shaking their head back and forth, fully engaged in a conversation that makes it extremely obvious to those other drivers that you aren't paying attention.

Be safe, smart and protect yourself. Think before doing, so you can live another day to talk about it.

Railroad Crossing Safety: What causes train track collisions with cars and trucks?

What would happen if your son or daughter’s school bus pulled out in front of a fast moving train?

School Bus vs Railroad Crossing - Educational Video

Destruction of a school bus

Impact of a 160 km/hr train with a nuclear container.

What is negligence? As a juror how do I analyze facts when negligence is the issue?

Today’s post is about negligence, what it is and how to view evidence to appreciate what is negligent behavior. Here is a headline and the opening line of a news story out of Indiana.

Snow causes crash and brief

closing of I-65 near Lowell

 

LOWELL | An early Saturday snowstorm is being blamed for a traffic accident that briefly closed a south Lake County section of Interstate 65 and left a downstate man injured.

For years I’ve read headlines and opening sentences in news stories with the lines blaming weather conditions for causing accidents. The idea that snow or weather or even slippery conditions can cause an accident is absolutely preposterous. There is snow outside in my driveway this morning and as I walk to the mailbox to retrieve the morning’s newspaper I notice that the driveway is slippery. The slippers I’m wearing don’t quite fit snuggly on my feet. (Acorn slippers) There is a car sitting in the driveway with snow on it and all around it. So far the snow hasn’t caused an accident. Why not? If snow causes accidents why hasn’t my car in the driveway had an accident? It’s been snowing all night and still there is no accident. The driveway is even slippery and so far no accident. I walked all the way down to the end of the driveway and back and still there is no accident. Maybe I should come back in an hour to see if there’s been an accident. What do you think will there be one? Will I come out to find the fenders crunched and wrecked car?

What’s necessary to have an accident? That’s the place where negligence starts. We need a driver or drivers. No driver and I dare say the car, snow and slippery driveway can coexist all day without having an “accident”.

Now let us turn the discussion to duty. As a juror sitting in a civil car accident case or as the judge will say, a tort case, there are four elements to be proven and then analyzed. The four elements are duty, a breach of duty, proximate cause and damages. Today we are looking at the first two elements, duty and breach of duty. Back to the snow.

As a lawyer with 28 plus years of experience trying civil lawsuits I am confident in saying snow has no duty not to be slippery or to avoid falling on the public highways. I am equally confident in my assertion that no judge would instruct a jury that any law required snow, not to be slippery or on the highway. That I am certain. Drivers on the other hand do have certain duties. A duty is a standard or rule of the road (a law or regulation) that driver must follow in using the public highways. Those duties can include restrictions on speed, when to pass, when not to pass, which side of the road each car should be driving, when to brake and when to make adjustments to the manner in which they drive. Adjustments are the key to this analysis. If it snows and the roadway is slippery the driver must slow down and operate the car or truck in a manner that allows the vehicle to be safely operated. It is the driver who has a duty not the snow. The slick conditions are just that; a condition which the driver must evaluate and adjust his or her driving habits to avoid colliding with other cars, trucks, people, signs, buildings, bridges, culverts and other fixed or moving objects. Drivers are what is needed in my driveway before there can be an accident and it’s those drivers that have the duty and can breach the duty. So when you’re sitting on a jury and someone says that it was the snow or other weather that caused the accident, explain to them how wrong they are and then sit back, hopefully you've wore that power tie or skirt, and see how quickly you’ll become the foreperson.

Here is the full report from Indiana about the snow having caused an accident. While it’s permissible with news reporters to write this way, it’s not proper for lawyers or jurors to think this way. People cause accidents, not weather or cars without drivers.

Snow causes crash and brief

closing of I-65 near Lowell

 

LOWELL | An early Saturday snowstorm is being blamed for a traffic accident that briefly closed a south Lake County section of Interstate 65 and left a downstate man injured.

Indiana State Police said Kevin Tomeo, 30, of Avon, In., west of Indianapolis, suffered head and internal injures. He was transported to St. Anthony Medical Center in Crown Point.

The National Weather Service said Saturday an overnight snow system deposited a half inch of snow across much of Northwest Indiana.

Police said an unidentified passenger car was southbound on I-65 shortly after 3 a.m. Saturday when it lost control on a patch of black ice that formed from snow melt at the 238 mile marker, two miles south of the Indiana 2 exit.

Police said the passenger car pulled out of the skid and continued unharmed, but Tomeo's Jeep Cherokee, which was traveling behind it, lost control when he attempted to brake to avoid a collision.

Police said the Jeep began spinning, hit the guard rail and bounced back onto the highway where it was hit by a 2003 Mack truck pulling a double trailer.

Police said the tractor trailer jackknifed, hit the guard rail on the right side of the pavement and came to a halt, blocking all southbound lanes of travel for two and a half hours.

Police said the tractor trailer driver, Roosevelt Bell, 28, of Park Forest, Ill., was uninjured, but ticketed for driving too fast for road conditions.

The National Weather Service said temperatures will remain in the low 30s, but no more snow is forecast until Tuesday.

 

Driver Safety: Does snow and ice on the road excuse the driver’s negligence?

The short answer is normally not.

Tuesday’s edition of one news source has this headline: Ice and snow blamed for fatal accident.  I read this and immediately know the writer hasn’t a good understanding of what makes up negligent behavior. The headline reinforces a popular misconception but nevertheless it is legally incorrect.

So what happened in this case?  It’s a two-car accident on U.S. Highway 34 in Monroe County that occurred on February 13, 2009 around 4:47 PM. Two cars traveling in opposite directions collide. The first vehicle is being driven by one Delaney Palen, an 18-year old woman traveling in the westbound lane. She’s driving a 2006 Chevrolet Cobalt. Delaney is from Ottumwa. The second car is a 2005 Hyundai Tucson being driven by Melissa Thompson, a 33-year old woman from Fort Leavenworth, Kansas. She’s driving east on this same stretch of highway. For those of not familiar with this roadway it’s a two-lane undivided U.S. highway.

There are passengers in each vehicle. Zach Murray is in the first car; Monica Thompson is in the second. Zach Murray is fatally injured in this accident.

Officer Daniel, of the Iowa State Patrol wrote the report. He’s notified of the collision at 16:48 and arrives at the scene at 16:51, so he’s really very close when he receives the call.  Let’s see how he describes the collision.

UNIT #1 WAS TRAVELING WEST ON HIGHWAY 34 WHEN IT LOST CONTROL ON THE 100% SNOW COVERED ROADWAY. UNIT #1 CROSSED THE CENTERLINE AND SLID SIDEWAYS INTO THE EASTBOUND LANE IN THE PATH OF UNIT #2. UNIT #2 STRUCK UNIT #1 IN THE PASSENGER SIDE DOOR. AFTER IMPACT, UNIT #2 CAME TO REST IN THE EASTBOUND LANE AND UNIT #1 TRAVELED DOWN INTO THE DITCH AND CAME TO REST IN THE EASTBOUND DITCH. TROOPER KEVIN STALLO #488 WILL CONDUCT A TECHNICAL INVESTIGATION OF THE COLLISION.

Officer Daniel notes major contributing circumstances include the roadway’s weather condition, the road surface condition and the first event is that the Palen vehicle crossed the center line. Let’s assume this to be the case. There are four factors to take into consideration.

1. There is a snow storm.
2. The roadway has snow and ice.
3. Palen crosses the center line.
4. Palen’s speed is fast enough for the weather conditions that the tires of her vehicle lose friction allowing the vehicle to slide out of control.

The first question you have to ask yourself is at what point a person simply has to not leave the house, waits to drive on the roads, if already on the roadway to pull off of the roadway and wait for the weather to clear sufficiently that travel is once again safe.

Iowa is a comparative fault state. What is fault as the law defines it? Fault is one or more omissions towards the person or property of the actor or of another which constitutes negligence or recklessness. It could mean misuse of a product, unreasonable failure to avoid an injury or unreasonable failure to mitigate damages. Iowa Code 668.1.

After you determine if more than one party to the claim is at fault then you have to compare the two. More than one person can be at fault under the law.

What is negligence? Or stated another way, what things make a person negligent? Start off with the rules of the road. Under Iowa law there are rules of the road that everyone learned when they first learning to drive. These rules are things like drive on the right side, don’t cross the center line unless it’s safe to do so, drive at the posted speed limit, don’t pass when there is a double yellow line and obey the traffic signs and signals, to name a few. Chapter 321 of the Iowa Code lists well over 400 rules-of-the-roads. These are what we call statutory rules because they are created by the legislature by enacting a statute.

Then there is the common law that has created certain rules for using the public highways. These include a common law duty to drive so that you can maintain control, to drive using ordinary care where conditions require less than the statutory speed limit and maintaining a proper look out.

Read alone a person might think they are not negligent for driving the posted speed limit even though the weather conditions indicate otherwise. The speed limit could be 55 M.P.H. but that doesn’t excuse a person if the roadway is covered in ice/snow and they fail to adjust to the conditions and slow down. We all have a duty to drive at a careful speed not greater than or less than is reasonable and proper, having due regard for the traffic, surface and width of the highway and of any other existing conditions. That is the first jury instruction under speed restrictions. UJI 600.1 (You need to be a lawyer to have access to the UJI through the Iowa Bar Association website.) Anyone who’s ever sat on a jury that decided a car accident probably heard and read this instruction.

As the court’s instruction would be to a jury, a violation of this duty is negligence.

So let’s get back to our example of driving while the road is ice and snow covered and snow is falling. I make no judgments about who is or is not at fault or negligent in the case of Palen and Thompson because I know nothing about that accident. We know what the police said about it but the police officer isn’t a court of law and those findings are not conclusive.

If before leaving the house you see it’s snowing and know the roads are ice covered you have to ask if you can drive safely or not. If not maybe you should stay home.

On the other hand it you’re out driving and it begins to snow and the roads become ice covered there is a point in time when you should pull off the road to avoid losing control.

And if you can drive safely but you have to slow down, then do so.

Ask yourself, what is the explanation of why each driver continued to drive and not pull over or to slow down enough to not lose control? Remember the facts? The car collision occurs in one lane of travel. One car crossed the center line. That is a very important fact. Because whatever you might think of car one’s driver continuing to drive, they were doing so under control; and that’s not true about the second car.

So as badly as you may feel about the collision and how badly the occupants were injured it doesn’t excuse negligence. And the weather isn’t at fault, it’s just one consideration. I say that because the weather isn’t driving the car. It’s the drivers.  Looking back at the beginning of this post, the headline blaming ice and snow for this fatal accident is inaccurate and a misstatement of the law of negligence.

Now all of you who read this and believe it sounds so easy that you should represent yourselves, think again. A professor in law school was heard to say, “A lawyer representing himself has a fool for a client.” In most instances I would agree with Professor Powers. Being prepared isn’t the same as being able to litigate a lawsuit. Be prepared but don’t be foolish.

Know your rights, protect yourself and be alert to risks that can cause injury or death.

Driver Safety: Wrong-side Accident Round-up, including Iowa

I saw a few stories on wrong-way drivers and earlier wrote about them. That story lead me to several others and low and behold I found that wrong-way accidents aren’t as infrequent as I first assumed. Just in these past few weeks I’ve found quite a few and thought to report on a few to see if there are similarities. I’m still not sure I see any, except drinking while driving don’t work.

Iowa – February 13, 2009 - A Buick Station Wagon being driven by Theodore Springman and a Dodge Dynasty driven by Rodney Fisher were involved in a head-on crash on I-380 in the northbound lanes of traffic. Springman was driving south in the northbound lanes of travel. The collision occurred around 1:00 P.M. yesterday, Friday, February 13, 2009. Both men were taken to Cedar Rapids’ St. Luke’s Hospital.

Montana - February 13, 2009 - Driving in the eastbound passing lane on I-90 in Gallatin County, Montana.

Several vehicles reportedly swerved to miss the car. A Dodge Durango, traveling east on I-90 at mile marker 317 tried to avoid the car and struck the median, according to the affidavit of probable cause. The Durango sustained extensive damage and its female driver was taken to the hospital for possible head, neck and back injuries, court papers state.

The husband of the woman driving the Durango located a 1989 Ford Festiva that matched the description of the wrong-way driver's vehicle and contacted the car's driver. The husband reportedly told authorities that he smelled alcohol on the defendant's breath and told him to remain while he notified Gallatin County Dispatch.

New Mexico – February 13, 2009 – A wrong-way car collides with school bus of middle school children injuring four students. City street with no report of driver’s condition or reasons for driving the wrong way on the roadway.

Illinois – February 5, 2009 – Drunk driver heading the wrong-way on I-255 resulting in the death of three people. Funeral services were held on this day. This wrong-way driver was driving drunk and faces three counts of reckless homicide. The dead include the 32-year old aunt, a 9-year old boy and a 28-year old man.

Michigan – February 12, 2009 – For reasons unknown the driver of a pickup truck drove the wrong-way down an exit ramp, entered U.S. highway 31 northbound in the southbound passing lane causing a three car collision resulting in the death of one and injuring another.

“A three-car crash this morning on southbound U.S. 31 between Laketon and Sherman resulted in one death and injuries to another driver.

Muskgon Police Department Sgt. Monica Shirey said around 7 a.m. a man driving a pickup went the wrong way down the off ramp on southbound U.S. 31 at the Sherman exit ramp.

"We have a witness who said a man driving a pickup truck went the wrong way. He started going northbound in the sounthbound lane on U.S. 31."

Shirey said another vehicle swerved to miss him but the Jeep behind him did not see the pickup truck and they hit head-on.

"The driver (of the Jeep) had no time to make any evasive moves," Shirey said.

Upon impact, the pickup truck flipped over the Jeep into the median, killing the driver.”

England – February 12, 2009 - Using a tire flattening device the police stopped a 54 year old man who drive nearly 20 miles the wrong-way on A-38. No reasons were given for the driver’s decision to drive the wrong way. No one was injured or killed.

Texas – February 12, 2009 – At about 3:30 A.M. a person driving a sedan headed the wrong way on the W. Sam Houston toll way.  The driver of the sedan died, the passenger was taken to the hospital in critical condition. The other vehicle was a pickup truck was injured and is in critical condition.

Florida – February 10, 2009 – “A 55-year-old man died early Sunday morning after he struck a car while driving his motorcycle the wrong direction on Little Road in Pasco County late Saturday night.

The Florida Highway Patrol said Thomas McCormick of New Port Richey was driving his 2007 Harley-Davidson motorcycle south in the northbound lane of Little Road near Bourbon Street and collided head-on with a 1996 Chevrolet about 11:10 p.m. Saturday. McCormick, who was not wearing a helmet, was taken to Bayfront Medical Center and listed in critical condition. He died at 3:45 a.m. Sunday, the patrol said. The car's driver, Ava Corbin, 41, and a passenger, both of New Port Richey, received minor injures, the accident report said.”

England – February 11, 2009 - Driving the wrong-way wasn’t the smartest thing for this criminal to do. After she was stopped the police smelled pot, conducted a search, discovered her stash, then searched her house and found what they believe to be cocaine. Oops this was not her day.

Illinois – February 10, 2009 – Trying to avoid police and evade arrest this man headed the wrong-way onto Highway 242 at which point out of concern for the safety of others police stopped the pursuit. The stolen car was later found and the driver is still being sought.

California – January 28, 2009 – The Camry driver was approaching Interstate 405 at about 5 a.m. when he crashed into the officer's car, according to the California Highway Patrol. Both cars burst into flames and both men were pronounced dead at the scene. As the officer's body was put into a coroner's van, police, firefighters and CHP officers draped his body in an American flag and saluted.

Massachusetts – January 23, 2009 –  Driver and officer died./ The Culver City police Sgt. Curt Massey was driving eastbound in West Los Angeles when a Toyota Camry heading the opposite direction collided with the officer.

Massey was a 17-year veteran of the Police Department who had received many awards and commendations, said police Chief Don Pederson. Massey was married with three children.

Massachusetts – February 7, 2009 – Attleboro, Police cruiser struck head-on Route 95 around 4:45 a.m. between exits 2 and 4 in the southbound side of the highway.

New Mexico – February 5, 2009 – Wrong-way driver drunk drving charges near Grants on Highway 40 at mile marker 72.

Oregon – February 6, 2009 on I-5 the wrong-way driver crashed into a barrier.  This is the one story providing some ideas and warnings of how to protect yourself.

About wrong-way drivers

Wrong way drivers present an obvious danger to all motorists on our highways. 

The most recent available crash statistics from the National Highway Traffic Safety Administration indicates wrong way drivers are involved in 1.5 percent of all fatal crashes.

Drivers who travel the wrong way on one way highways generally fall into one of our different categories:

• Intoxicated driver
• Older drivers who easily get confused
• Intentional drivers (example - trying to avoid traffic jams / congestion caused by crashes)
• Inattentive drivers who mistake an off ramp for an on ramp

OSP and ODOT provided the following safety tips and information related to wrong way driver situations:

• Watch far ahead for signs of a possible wrong way driver, looking for signs similar to pending problems or developing emergency situations such as other traffic braking or swerving to avoid something, or the obvious - headlights coming in the opposite direction.
• Caution against driving long periods in the inside lane on freeways, especially on curves.
• Be aware that wrong way drivers usually drive in the inside lane or inside shoulder, believing they are actually on a two-lane highway.
• Most common types of wrong way driver involved crashes are head-on or sideswipe crashes.

Auto Safety: Why do car and motorcycle accident cases take so long to conclude?

Motorcycle Safety - Negligence takes many forms

Why do lawsuits take so long to conclude? That’s a question you may have asked before. Perhaps you’ve sat around the local diner complaining about the weather and as often will happen sooner or later the conversation turns to the lawyers or court system. Well let us explore what I consider to be a simple case of a car accident and perhaps you will better understand this system. Keep in mind above every other consideration we are after the truth. And the truth isn’t what everyone is saying at the table, the truth is about the facts as they actually happened at the time and place where the incident occurred. You weren’t there, I wasn’t and no one at the table was either.

Back on October 30, 2008 there was a report of a motorcycle accident involving two Monona men. The one was driving his motorcycle south on Golden Avenue, when a truck being driven by an elderly man turned left of center going into his own driveway, and the two crashed. The motorcycle struck the truck in the left front side. The man on the motorcycle was killed.

How then do we evaluate the facts and apply them to the concept of negligence? Negligence is behavior, or in this instance driving on the public roadway in a manner, that violates the law. The law in Iowa, the rules of the road, that a person can not turn left of center without making sure the lane is clear and that they can make the turn in a safe manner. It’s what you most every time you turn left of center.

The accident happened around 4:50 p.m. so we know the sun could not have been a factor. Because this is the man’s driveway we know he must have been familiar with the area, probably having performed this turn a hundred or more times. I don’t believe there was any snow or ice on the road and we wouldn’t expect there to be at this time of year. There is nothing in the article about snow and ice so we can assume for the purpose of this evaluation there was none. There is no indication of any emergency.

As lawyers we must look at the condition of the car, the motorcycle, the road, the weather that can affect the car-motorcycle and road, and lastly the drivers of either the car or the bike.

We see nothing wrong with the roadway; nothing indicates there was a problem with the bike or the car. Everything so far points us in the direction of examining the drivers.

The statements by the truck driver are certainly important, but for several reasons he might not give a statement. One, he could be so upset that is unable to talk. Or, he might choose to not give a statement for legal reasons. The sobriety of the drivers is certainly a fact we would need to know. In this instance we don’t have his statement, or at least it wasn’t reported and without the Iowa State Patrol’s investigative report I can’t venture a guess as to why he turned.

One fact we can’t ignore is the truck driver’s age. It’s reported that at the time of the collision he is 73 and the motorcycle rider is 46. Age should make the lawyer consider aspects of aging that could have been a factor. Does the truck driver wear corrective lenses of any kind? Eye glasses or contact lenses and were they being worn at the time of the wreck? What was the vision challenge that corrective lenses made better? Was the driver supposed to be wearing glasses while driving? Was he? What about the motorcycle driver? What are the answers to these questions for him?

Several facts we don’t know that would help us draw conclusions about negligence or fault would be skid marks, whether lights were on for either vehicle or the speeds of either. It would be interesting to note if the driver of the truck ever stopped before he turned. If we had a witness we wouldn’t necessarily need to talk with the driver although his confirmation or refuting of what the witness had to say might prove helpful.

Without leaving our office it would be nice to see what this location looks like. The city or town of Monona on WikiMapia doesn’t show up with the kind of detail we will need. So let’s check Google Earth and see if it can provide more detail. Google Earth gives us access to Wikipedia which provides both a brief description and a full article on Monona.

Monona is in northeast Iowa and is a small city in Clayton County, Iowa, United States. The population was 1,550 at the 2000 census. Wikipedia demonstrates clearly that Monona is not a densely populated place. The population density is 1,344.6 people per square mile. The map on Google Earth provides no better detail than did Wikimapia. But it did allow access to city demographic information that gives us some idea about the population density. Of course living in Iowa I pretty much knew this already. Comparing Monona to New York demonstrates the contrast. The New York metropolitan area's population is also the nation's highest, estimated at 20,090,000 people over 6,720 square miles (17,400 km²). The population of the City of New York is 8,274,527 people with a density of 27,147/sq mi.

“As of the census of 2000, there were 1,550 people, 659 households, and 432 families residing in the city. The population density was 1,344.6 people per square mile (520.4/km²). There were 706 housing units at an average density of 612.4/sq mi (237.0/km²). The racial makeup of the city was 98.65% White, 0.06% African American, 0.58% Native American, 0.39% Asian, and 0.32% from two or more races. Hispanic or Latino of any race were 0.06% of the population.”

As you can see, determining negligence or fault, as we refer to it in Iowa, is a multifaceted evaluation and one not quickly decided. Even with all of the online tools available to us today, there is still shoe leather and face time a lawyer will need to commit too. Get out visit the accident scene, take photographs, talk with witnesses and the police officer. Now do we do that in every case; not necessarily. Not every case will be tried. After 28 years of being a trial lawyer I’ve got a sense of what is required to conclude a case and that too is a multifaceted mental evaluation.

This is only the preliminary evaluation. The insurance company has to be contacted and provided information. The medical records, autopsy report, police accident investigation report, the medical bills, doctor’s reports for those physicians who treated the patient or examined, in this case the dead body. There will be more than one set of photographs to examine. Claims will be asserted by competing parties about what they saw or heard and how that changes perceptions of fault. The Petition and Answer along with interrogatories and requests for production that will have to be drafted, served, answered and responded to. There are depositions to take of the driver and the coroner. At some point a settlement letter will be drafted, served, evaluated, discussed and responded to. There is much more than this but this gives you some idea of what is involved.

So, if you wonder why lawsuits take so long to conclude it’s because law requires the right decision to be made, it’s not easily or quickly done. There is no express lane in trial work.

Driver Safety: Am I more likely to survive in a bigger car?

Negligent driving habits: Distractions evidence of negligence

Distractions while driving can be considered negligent if they interfere with the driver's ability to control the vehicle.

A Canadian driver who after spilling coffee on his leg while driving, then lost control and ended up wiping out in the ditch. The driver was charged with Careless Driving under Canada’s Highway Traffic Act.

The Canadian law he was charged under appears to be a crime; or like we have a lesser criminal violation that results in a fine. Sort of like speeding. Had he struck another car or wrecked someone's property if he pleads guilty to the ticket charge, it can be used against him as evidence that he admitted to violating the rule of the road. This is what lawyers call an admission against interest.

Des Moines DART Ducks Liability for Hitting Pedestrian

FDA announces recall of jaw, face or cranial implants due to risk of infection

If you’ve had a Stryker Custom Cranial Implant surgically implanted to correct lower, upper jaw, face or cranium defects due to injury you’ll need to read the FDA Announcement and contact the surgeon who performed the surgery. You are at risk of infection.

All hospital administrators need to check supply shelves and return the kits.

If any patient needs assistance contact our office. The FDA Alert is below with the necessary link.

Stryker Custom Cranial Implant Kits

Audience: Maxillofacial surgeons, hospital risk managers

Stryker Leibinger USA and FDA notified healthcare professionals of a Class 1 recall of all sizes of the cranial implant kit distributed from November 5, 2007 through October 23, 2008. The company is recalling these products because sterility cannot be assured. Custom cranial implants are designed individually for each patient to correct trauma and/or defects in the lower jaw, upper jaw and face or the cranium and the face. Implanting surgeons were notified individually of the problem in a October 24, 2008 recall letter. The letter advised them of the risk for serious infections, and instructed them to follow-up with patients for infections for at least six months after surgery. The recall letter also included details for identifying and returning any remaining implant kits.

Read the complete MedWatch 2008 Safety summary, including a link to the Class 1 recall notice, at: http://www.fda.gov/medwatch/safety/2008/safety08.htm#Stryker

Food Dafety: Melamine in baby formula, none in Iowa so far.

Wyeth, an American company manufacturing baby formula, is accused by a Chinese consumer of melamine contamination. Wyeth has tested and denies any contamination with melamine. A consumer surnamed Li has provided a list of 19 Chinese babies who are claimed to have kidney stones.

What are the possibilities with this claim?

1.      There is melamine in the formula and it was introduced during the manufacturing process. This is highly unlikely.

2.      There is melamine in the formula, but it was added after the consumer purchase. The baby’s do have kidney stones but not from melamine in any of Wyeth’s formula. They drank formula manufactured from Sanlu. Wyeth is now being targeted because these parents know they can’t get compensation from the Chinese manufacturer and help in the Chinese Courts.

3.      There are no kidney stones or melamine in the children’s formula.

So what do would we want to see? We want to see the formula for Wyeth to examine it and determine if it was manufactured in their plants. To determine if in fact there is melamine in the formula. And the babies examined by a physician of Wyeth’s choosing. And finally produce the parents for questioning.

The last request would be free speech in China; freedom to criticize the Chinese Communist Party and government officials. Along with an investigation into the officials that looked the other way when melamine was added by Chinese milk producers. Without that America will never believe this claim against Wyeth. It looks more like simple retaliation by the CCP or desperation by the parents who need more than a mere $12,500 US in compensation to care for their sickened babies.

The Chinese government would be wise to closely investigate this claim.