Responsible Gun Ownership Requires Planning

Guns have become a hot button issue in recent months and for good reason. The Sandy Hook tragedy and other mass killings involving guns have pushed the issue of "gun control" firmly into the public spotlight and have emphasized the need for responsible gun ownership. Responsible Texas gun owners need to not only instill practices regarding the safe use and maintenance of their personal firearms but they should also plan for how those firearms will be possessed, transferred and used by others, especially family members.

The solution: a Texas NFA Gun Trust.

A Texas NFA Gun Trust not only helps people plan for how their guns will be passed down to future generations but it helps protect people from potential costly violations of the National Firearms Act (NFA). For example the NFA requires that certain types of firearms and "destructive devices", often referred to as Title II firearms, be registered with the ATF. In the event a Title II firearm is passed down to a relative, gifted, or even borrowed the possessor may be in violation of the NFA and would be subject to a fine of up to $10,000 and up to 10 years in prison.  A Texas NFA Gun Trust from an experienced attorney is worth the investment and the piece of mind.

Email or call the NFA Gun Trust Lawyers at Tekell & Atkins, L.L.P. at 254-776-5095.

Baby Deaths Linked to Infant Formula Additive

The FDA has warned parents, caregivers, and health care professionals to be aware that infants of any age may face an increased risk of developing a life-threatening condition if fed a thickening product called SimplyThick which is manufactured by a company of the same name.

The FDA claims that since May 2011 the agency has identified 22 infants who developed necrotizing enterocolitis (NEC), a condition in which tissue in the intestines becomes inflamed and dies, after being fed SimplyThick. Seven of those infants died.

According to the FDA, parents should watch for the following syptoms in their infants and contact a health care professional if any of these symptoms occur:

• bloated stomach;
• greenish-tinged vomiting; and
• bloody stools.

While SimplyThick has warned its customers about risks its product may pose to premature infants it has not yet updated its warning to reflect the risk its product poses to infants of any age.

Pictures of this potentially dangerous product may be found here.

New Tires can be Old and Dangerous

We all know that car passenger tires need to be changed from time to time, either due to deterioration from normal wear and tear or due to some unpreventable damage from a nail or other hazard in the road.

What consumers may not know is that even before your tires show wear or damage they may already be dangerous or defective due to their age. Moreover, when you replace your tires, your new tires may be old and defective even though they haven't traveled a mile on the road. The tire industry has readily acknowledged that the older the tire the more likely it is to fail and cause serious injuries.  Accordingly it is important to protect yourself and your loved ones by researching the age of the tires that are currently on your car and those that are to be installed. 

Finding out the age of your tire is fairly simple, each tire is stamped with a Department of Transportation (DOT) number.  Tires made after the year 2000 have a four digit code that conveys this information- the first two numbers will read from 01-52 which represents the week of the year they were manufactured; the last two numbers will, for example, read 05 which means it was manufactured in the year 2005.  So a DOT number of 2005 means the tire was made in the 20th week of 2005. 

You can read about how dangerous old tires are here, and find out more information about how to read the information on your tires here. 

If you or a loved one has been hurt in a car crash you should promptly investigate whether the reason behind the crash is a defective tire.  The personal injury trial attorneys of Tekell & Atkins, L.L.P. will assist you in this investigation free of charge.    

Study Confirms Distracted Driving Higher Among Teens

  The Bridgestone tire company recently commissioned a nationwide survey on distracted driving that showed that:

• many young drivers are in denial about their distracted driving tendencies;
• girls are far more likely to engage in distracted behavior behind the wheel than boys; and
• parents often set bad examples.

A New York Times article summarizing the survey can be found here.

The survey results confirm the overwhelming amount of research proving the dangers of driving while distracted. Prior studies are discussed here, here, here, and here.

If you want to know more about the dangers of distracted driving or would like to arrange a special presentation on the dangers of distracted driving for your community, school, or civic group please contact Aaron M. Mutnick of Tekell & Atkins, L.L.P. at 254-776-5095.

Rearview Cameras Mandatory?

A recent New York Times article has reported that Federal regulators at the National Highway Traffic Safety Administration are proposing a rule that would require automakers to put rearview cameras in all passenger vehicles by 2014 to help drivers see what is behind them.  As the Times reported, about two children die every week and another 50 are injured when someone accidentally backs over them in a vehicle, and more than two-thirds of the time a parent or other close relative is behind the wheel.

 

Nationwide Ban on Cell Phone Use in Cars?

A gruesome work zone collision involving two school buses, a semi-truck, and a pick-up prompted the National Transportation Safety Board (NTSB) to recommend that all 50 states and the District of Columbia ban the nonemergency use of portable electronic devices (except GPS devices) for all drivers.

The NTSB's executive summary of the crash states that on August 5, 2010 in Gray Summit, Missouri a driver of a 2007 GMC Sierra pick-up rear-ended a stopped truck-tractor with no trailer.  Seconds later, the first bus in a convoy of two school buses ran into the pick-up and then the second bus rear-ended the first bus. The collision resulted in the deaths of the pick-up driver and a passenger in the first school bus, and 37 other people suffered minor to serious injuries.

The NTSB determined that the probable cause of this horrific crash was "distraction, likely due to a text messaging conversation being conducted by the GMC pickup driver."

The NTSB recommended that the Wireless Association and the Consumer Electronics Association encourage the development of technology features that disable the functions of portable electronic devices within reach of the driver when a vehicle is in motion again with the caveat that it may be used for emergencies.

Insurance Companies Hurting Doctors and Patients

A recent 5th Circuit opinion  exposed what is an all too familiar problem for doctors and their patients: health insurance companies refusing to pay for treatment after expressly authorizing the treatment.

According to the 5th Circuit, this scenario "is reenacted each day across the country" and usually unfolds as follows:

• A patient visits their doctor to receive treatment for a medical condition.  
• The doctor diagnoses the condition and recommends a medical treatment plan. 
• For some patients the medical treatment plan may require additional treatments, surgery, and medical devices (implants, prosthetic, other equipment.)
• The doctor then contacts the patient's insurance company to see if the requested treatment is covered under the patient's health insurance policy.
• If the patient's health insurance policy confirms that the treatment or device is covered the doctor then proceeds with the treatment.
• The doctor then sends a bill to the patient's health insurance for the services or treatment provided, but the insurance company refuses to pay what it had previously agreed was covered.
• The doctor then may seek reimbursement from the patient who is unlikely to be able to pay for this unplanned financial burden, which can uncomfortably transform the patient/doctor relationship into the debtor/creditor relationship.  

The good news for doctors and patients is that the 5th Circuit has now decided that even health insurance companies that issue group policies, or ERISA policies, which are normally regulated by a more lax federal law, can now be held liable under more stringent Texas Insurance and Consumer laws.

Therefore if you are a Texas doctor or Texas patient whose health insurance has authorized medical treatment only to deny coverage after you received treatment, you may have a claim against the health insurance company who is now denying coverage.   

Texting While Driving Doubles Reaction Time

A recent study by Texas A&M University's Texas Transportation Institute found that texting, or emailing, while driving doubles reaction time and makes drivers more likely to miss a flashing light.


The study was composed of 42 drivers between the ages of 16 and 54 who drove on an 11-mile (17 km) closed test course while sending or receiving text messages, and again while focusing completely on the road.

In the interest of safety for both participants and the research staff, researchers minimized the complexity of the driving task, using a straight-line course that contained no hills, traffic or potential conflicts other than the construction zone barrels. Consequently, the driving demands that participants encountered were considerably lower than those they would encounter under real-world conditions.

The researchers then asked the drivers to stop when they saw a flashing yellow light and recorded their reaction time.  The typical reaction time without texting was between one and two seconds, but while texting it increased to three to four seconds, regardless of whether the driver was typing or reading a text.

The researchers also found that a texting driver was 11 times more likely to miss the flashing light.

The fact that the study was conducted in an actual driving environment is important. According to research manager Christine Yager most research on texting and driving has been limited to driving simulators, whereas this study involved participants driving an actual vehicle. While the researchers believed their results are more significant since the study was in an actual driving environment they wrote that, "it's frightening to think of how much more poorly our participants may have performed if the driving conditions were more consistent with routine driving."

Perhaps this research will reach some of Texas A&M's more influential elected alums.

Metallic Hips: Dangerous Fail

A recent New York times article reported that studies involving patients with metal-on-metal artificial hips are suffering from health problems, including tissue destruction, as the hips shed tiny pieces of metallic debris.  


The article describes one particular case where the surgeons removing of one of these dangerous artificial metal hips saw, "a biological dead zone...[with] matted strands of tissue stained gray and black, [and] a large strip of muscle near the hip no longer contracted."  


More frightening than the destruction caused by the dangerous metallic debris from the artificial hips is that some patients have no obvious symptoms, like pain, to warn them that there tissue and muscle is being destroyed.

Semi Truck Hits Train. Distracted Driving to Blame?

On Friday June 24, 2011 a semi-truck operated by John Davis Trucking Company, Inc. out of Battle Mountain, Nevada ran through a railroad crossing outside of Reno, Nevada and into an Amtrak passenger train  leaving six people dead and five passengers unaccounted for.

According to an Associated Press report, the crossing gates and blinking lights should have been visible a half-mile away. However tire skid marks at the scene, purportedly from the semi-truck, were less than 300 feet away from the crossing which has led authorities to investigate whether driver distraction or mechanical failure may be to blame for this tragedy.  Both of these possibilities seem to be plausible based on the truck driver's record and the trucking company's history.  More specifically, the trucker's driving record includes three speeding tickets while driving a commercial vehicle, one ticket for driving while talking on a cell phone, and the trucking company has been cited by the Nevada Department of Public Safety numerous times for crashes, unsafe driving, and for operating a truck with tire treads so exposed it had to be taken off the road.

As state and federal authorities continue their investigation they will undoubtedly try to extract data from the semi-truck's "black box," as well as from other electronic data that is stored on the truck's equipment.  This electronic data can often reveal the speed of the truck prior to the crash, the braking time before impact, and whether or not the driver was using a cell phone or other electronic communication device.  If you or a loved one are ever injured by a semi-truck it will be imperative to gather this same type of evidence, and if you should chose to hire a personal injury trial lawyer to help you do this make sure to ask the attorney if they have experience in retrieving this type of information.

Ruptured Disc Forces Man to Rob Bank?

The ABA Journal recently reported that a North Carolina man robbed a bank to get prison health care for his two ruptured discs.  According to the report, 59 year old James Verone walked into a bank, handed a note to a teller demanding $1, and then sat down and waited for the police to come arrest him.

While Mr. Verone's method of receiving health care is by a criminal act, his action highlights the seriousness of the pain of ruptured discs and the lengths someone is willing to go in order to receive medical treatment.

You can learn more about a herniated or ruptured disc form these links:

• Cedars-Sinai Hospital
• Mayo Clinic
• Web MD

Perry Vetoes Texting while Driving Ban

Although several cities in Texas, including Austin, already have a city-wide ban on texting Gov. Perry declared in his veto statement to HB 242 that a state-wide ban on texting while driving would be, " a government effort to micromanage the behavior of adults," and that the current Texas law prohibiting teenage drivers from texting while driving is sufficient. Gov. Perry also stated that, "the keys to dissuading drivers of all ages from texting while driving are information and education."

Gov. Perry did not draw a distinction between texting while driving and other harmful driving behaviors that the State has deemed worthy of curbing by both education and civil/criminal penalties, e.g. Click It or Ticket campaign and the Faces of Drunk Driving campaign.  In light of this veto, it is interesting to note that research has shown that talking on a cell phone impairs a driver's reaction time as much, if not more than, drunk driving.

The Texas Department of Transportation currently promotes a public awareness campaign called, "Talk. Text. Crash" which refers to distracted driving as a "deadly trend...in Texas, where nearly one in four crashes involves driver distraction."  Apparently Gov. Perry believes that the best way to curb this deadly trend that kills hundreds of Texans every year does not include any civil or criminal penalties.  If you desire to express your opinion either in support of the Governor or in opposition you may contact the Governor here; the text of the vetoed bill can be found here.

Bounce House Hazards; Special Alert to Parents

A 2009 memo from the Consumer Product Safety Commission ("CPSC") estimated that there were over 31,000 emergency department treated injuries associated with inflatable bounce houses in between 2003 and 2007 in the U.S.- that's over 17 trips to the emergency room a day.

The CPSC's memo also revealed that during that same period there were four reported deaths, most of which involved someone falling off or out of the inflatable and then hitting their head on the hard pavement nearby.

Now as summer vacations get underway parents will undoubtedly be hosting or taking their children to birthday parties or gatherings with inflatable bounce houses.  While these bounce houses look soft, safe, and fun for children of almost any age the CPSC's data tell a different story, and  a recent article in the Washington Post revealed several shocking stories of how improperly staked bounce houses have been blown across city streets, swept away by wind gusts, or toppled by excessive weight.

Before letting your child enter a bounce house or other inflatable jumping device make sure to check that:

1. The inflatable is properly secured and staked; 
2. The inflatable is not over crowded with children;
3. The inflatable is not tattered, worn or patched; 
4. Your child is never unattended and someone is always watching the inflatable; and
5. The air flow from the motor to the inflatable is not obstructed. 

Distracted Driving: A Test

Studies have shown that we're bad multi-taskers. The same research has also shown that we think we're good multi-taskers.  Unfortunately, when our confidence to multi-task translates into getting behind a car wheel and picking up a cell phone we become dangerous multi-taskers. This is because when we drive and talk on our cell-phones a variety of manual, visual, and more importantly, cognitive distractions impair our ability to do either task well.

Take this test to see how well you pay attention in a distracting environment.  

Tornadoes and Severe Weather Damage Waco area

According to local news reports golf-ball sized hail, torrential rains, strong winds, and tornadoes pounded Waco, Texas and surrounding areas including Lacy Lakeview, Mart, and China Spring on Tuesday evening.

Here is a link to a Tornado Safety Guide published by the National Weather Service which includes a discussion on how to recognize the signs of a tornado before it's too late to react.

If you or a loved one have been affected by severe weather you may want to consider following these steps (most of which are adapted from the Tornado Safety Guide) which are essentially the same as those for persons involved in car crashes:

1. Safety First.  Always make sure you and your family are safe. If you are in a secure building remain inside in an interior room away from windows until you can confirm that it is safe to leave your shelter.   If you or a loved one is injured seek immediate medical attention. Watch for power lines -they may still be carrying high voltage, and be mindful for broken glass and debris on the ground. Do not use matches or lighters because they may spark natural gas that is in the air from ruptured lines.

2. Wait for Emergency Personnel to Arrive. In Waco or McLennan County you may find information about emergency services here.

3.  Document any Damage to Your Property.  If you are able you will want to start securing your personal property and your home to prevent further damage and documenting what property is damaged.

4. Contact Your Insurance.  As soon as you are able contact your insurance company.  During severe weather situations insurance companies often get over-whelmed with phone calls and claims which means that any delay in presenting your claim may delay any necessary repairs.  Unfortunately, some insurance companies do not always agree to cover all of the damage that is caused by severe weather.  Sometimes this is due to a limit or exclusion in the policy and sometimes it is due to an insurance company acting in bad faith.  If you have questions about how your insurance company is handling your claim you should consider contacting a trial attorney who specializes in consumer and insurance law.

Toyota Recalls 308,000 Highlanders and RAV4s

According to a recent New York Times article by Christopher Jensen and recent filings with the National Highway Transportation Safety Administration (NHTSA) Toyota will recall nearly 308,000 Highlanders and RAV4s due to defects in the curtain shield airbag system.  According to the summary on file with the NHTSA, if the two sensors in the airbag sensor assembly fail nearly simultaneously the curtain shield airbag could deploy and the seatbelt pretensioner can activate which could injure an occupant. Toyota's recall covers about 214,000 RAV4s from the 2007-8 model years and 94,000 Highlander and Highlander hybrids from 2008.  Affected owners can call Totyota at 1-800-331-4331, or the NHTSA vehicle safety hotline at 1-888-327-4236 (TTY 1-800-424-9153), or go to www.safercar.gov. for more information.

If you have been injured by a defective Toyota Highlander or RAV4 airbag you should consider contacting a personal injury trial attorney to investigate this matter further and to help you determine what rights you may have to hold Toyota responsible.

Dog Attacks in Texas

According to the Center for Disease Control (CDC) 4.5 million Americans are bitten by dogs each year, with one in five bites requiring medical attention.  Out of those attacked every year, children between the ages of 5 and 9 are the most at risk.

The CDC recommends that parents teach their children the following basic safety tips and review them regularly:

• Do not approach an unfamiliar dog
• Do not run from a dog or scream
• Remain motionless (e.g. "be still like a tree") when approached by an unfamiliar dog
• If knocked over by a dog, roll into a ball and lie still (e.g. "be still like a log").
• Do not play with a dog unless supervised by an adult
• Immediately report stray dogs or dogs displaying unusual behavior to an adult
• Avoid direct eye contact with a dog
• Do not disturb a dog that is sleeping, eating, or caring for puppies
• Do not pet a dog without allowing it to see and sniff you first
• If bitten, immediately report the bite to an adult

Unfortunately, even if you or your child takes every precaution around a dog there are some dog owners who fail to control their dogs and fail to warn others away from their dogs.  In Texas a dog owner can be charged with a third degree felony if their dog attacks someone and they had reason to know that the dog may attack. See Texas Health and Safety Code Sec. 822.005.

If you or a loved one has been attacked by a dog, you owe it to yourself and your community to report the attack to the authorities and to consider hiring a personal injury trial attorney to help you hold the dog owner responsible.

Car Insurance: Are You Covered?

In most states, including Texas, it is mandatory for drivers to be insured for car accidents they cause (referred to as minimum liability coverage).   However, most drivers' experiences confirm the necessity of having additional insurance coverages to not only protect themselves from being sued for accidents they cause, but also to avoid paying out-of-pocket when a driver who caused an accident either had no insurance or insufficient insurance to cover their injuries and damages.

In Texas there are actually 8 different types of auto insurance coverages you can purchase, each with different limits of coverages.  In fact, the Texas legislature has deemed Personal Injury Protection and Uninsured/Underinsured Motorist coverages so important that if a consumer does not want those types of coverage the consumer must specifically reject those coverages in writing.

It is not only important for you to be familiar with the types of coverage you have purchased and their limits, but also to be familiar with the coverages you have rejected, as well as any endorsements and exclusions which further limit your coverage.

In addition to basic liability coverage, most drivers should consider purchasing the following types of insurance:

1. Medical Payments Coverage

What it pays: Your medical and funeral bills resulting from accidents, including those in which the other person is a pedestrian or bicyclist.

Who it covers: You, your family members, and passengers in your car, regardless of who caused the accident.

2. Personal Injury Protection (PIP) Coverage

What it pays: Same as medical payments coverage, plus 80 percent of lost income and the cost of hiring a caregiver for an injured person.

Who it covers: You, your family members, and passengers in your car, regardless of who caused the accident.

An insurance company must offer you $2,500 in PIP, but you can buy more. If you don’t want PIP, you must reject it in writing.

3. Uninsured/Underinsured Motorist (UM/UIM) Coverage

What it pays: Your expenses from an accident caused by an uninsured motorist or a motorist who did not have enough insurance to cover your bills, up to your policy’s dollar limits. Also pays for accidents caused by a hit-and-run driver if you reported the accident promptly to police.

• Bodily injury UM/UIM pays without deductibles for medical bills, lost wages, pain and suffering, disfigurement, and permanent or partial disability.
• Property damage UM/UIM pays for auto repairs, a rental car, and damage to items in your car. There is an automatic $250 deductible, which means you must pay the first $250 of the repairs yourself.

Who it covers: You, your family members, passengers in your car, and others driving your car with your permission.

Insurers must offer UM/UIM coverage. If you don’t want it, you must reject it in writing.

4. Collision (Damage to Your Car) Coverage (If you still owe money on your car, your lender will require you to maintain collision and comprehensive coverages.)

What it pays: The cost of repairing or replacing your car after an accident. Payment is limited to your car’s actual cash value, minus your deductible. Actual cash value is the market value of a car like yours without damages.

Who it covers: You, your family members, passengers in your car, and others driving your car with your permission.

5. Comprehensive (Physical Damage Other than Collision) Coverage

What it pays: The cost of replacing or repairing your car if it is stolen or damaged by fire, vandalism, hail, or a cause other than a collision. Comprehensive coverage also pays for a rental car or other temporary transportation if your car is stolen. Your policy won’t pay for an auto theft unless you report it to police. Payment is limited to your car’s actual cash value, minus your deductible.

If you still owe money on your car, your lender will require you to have collision and comprehensive coverage.

Description of Insurance coverages from the Texas Department of Insurance

Distracted Driving > Drunk Driving

According to a study by the University of Utah's Applied Cognition Lab using a cell phone while driving, whether it’s hand-held or hands-free, delays a driver's reactions as much as having a blood alcohol concentration at the legal limit of .08 percent.


Please be mindful of the rules of the road, and consider following a "no-cell phone while driving" rule, as it will hopefully be the law very soon in most states. You can start by changing your voice-mail greeting to include as part of your message that you may not be answering the phone because you're driving.    

Tort Reform: Is it Constitutional?

The previous post regarding "tort reform" presented data from an empirical study which showed that the majority of elected judges in Texas, both Republican and Democrat, believe that tort reform is unnecessary. In this post, guest author and Houston Trial Attorney Steve Waldman weighs in on how the current tort reform bills could affect the Constitution and the Bill of Rights.

Constitution Demolition - Also Known as TortReform3   
By: Steve Waldman

When did the Bill of Rights lose all its amendments other than the Second and the Tenth?  All I hear the defenders of the Constitution actually defend are the right to bear arms and states' rights.  What happened to the right of trial by jury?  When did it get cast on the refuse pile?  Are the freedoms of speech and religion next?

Can you imagine the Two Commandments?  I am just as much against graven images and coveting as the next guy, but aren't the Ten Commandments a packaged deal?  Is the Bill of Rights any different?

What is being proposed in Austin right now is a total elimination of jury trials, particularly in cases where companies cause the most harm.   

Lawmakers are proposing a "Voluntary Compensation Plan," which allows companies to set up "Plans" 90 days after causing death or injury to two or more people.  BP can blow up half of Texas City and be immune from liability beyond whatever "Plan" it chose to adopt.  The statute has no requirements for what the plan covers and punishes you if you attempt to go outside the plan.  And, to make sure you are unable to find an attorney to help you, attorney's fees are capped at 5% of what you recover from a Plan.  Have you ever fought with a "Plan" over benefits?     

Also being proposed is a British-style "loser pays" law that will make a plaintiff who loses a lawsuit and his or her attorney liable to pay the winner's attorney's fees, litigation costs, travel expenses and expert witness fees.  This only applies to plaintiffs.  Defendants are never required to pay the plaintiff's costs.  If this passes, anyone who is injured due to the negligence of someone else will risk financial ruin if he or she files suit.

So what can you do?  You can get involved.  Write your state legislator and state senator and tell them you care about your constitutional rights, including the right to have your day in court.  Stand up for the Constitution!  

You can also get involved through Texas Watch, "a non-partisan citizen advocacy organization dedicated to ensuring that corporations and insurance companies are accountable to their customers."  Alex Winslow, the director of Texas Watch, is a corporate watchdog.  If you are upset that your rights have been taken from you, contact Texas Watch and check out their Take Action and Share Your Story links. 

If you have a story to tell, Texas Watch wants to hear it.  You can also email Texas Watch by clicking on this link.

Reprinted with permission.