Tuesday, June 19, 2012

Strava Suit...

First off, I like using Strava.  I think it is fun, good way to keep track of rides, and fosters some healthy competition.  Do I chase KOM's?  Sometimes.  I really just like how I can keep track of my rides, especially when I go out on unfamiliar routes.  I can always look up where I went and how to get back there.

That said, today I read about a family suing Strava for the death of their son when he was speeding down a hill to reclaim his KOM: http://velonews.competitor.com/2012/06/news/family-sues-strava-over-descending-death_224889 .

I know what you are thinking: James, you are a personal injury lawyer, you would probably sue too.  Well, maybe, if the facts were good.  Obviously, for the Strava suit I don't know all of the facts.  But what I do know is the cyclist was speeding (in excess of the speed limit, which, as a vehicle cyclists are bound by speed limits) down a hill.

The lawsuit alleges that Strava negligently caused the death by encouraging the cyclist to speed.  Truth be told, Strava, to some extent, does encourage this behavior.  You become KOM and two days later someone (ahem, Denny Yunk) steals your KOM on that same portion of road.  Strava then sends you an email notifying you that said person stole your KOM and by how much time.  Now, none of the KOM's I am after are on descents, but I have headed out on my bike to speed uphill in an attempt to get my KOM back.  So, it is arguable that Strava encourages such behavior.

However, here is my problem with the case.  It is going to very hard to show that Strava was more negligent than the cyclist himself.  If the cyclist is the more negligent party, then the cyclist recovers nothing.  In this case, the cyclist was willingly speeding down a hill.  He chose to do that.  He chose to get in a vehicle and disobey the traffic laws.

Strava may have some fault, but the question is "is Strava more at fault for the cyclist's death?"  That will be hard to prove to a court when trying to defend this case form being thrown out, and, assuming it gets past that point, it will be a hard point to prove to a jury- very hard.

The most interesting thing about this lawsuit, to me, is the use of Strava itself.  Users of Strava, and other ride recorders, are basically using a "black box" when they ride.  It logs speed, distance and can show you how fast you were going at specific distance or time in the ride.  And then it stores it online.  If there is an incident, and later a lawsuit, attorneys will be able to view how fast the cyclist was going at the time, where exactly the cyclist was when hit and/or caused an collision.  The data collected becomes the "truth" of what happened.  It can be used for or against an individual. And if you delete the data and/or ride, you could possibly have destroyed evidence and could face sanctions from a court- much like removing things from Facebook.

In all, it will be interesting to see what happens with this case.  Will Strava settle to show a good face?  Will Strava defend and move to dismiss the case to prevent future lawsuits or to show this case has no merits in law?  Or, will a judge see that this is all a matter of fact, which is for a jury to decide?

It is an interesting lawsuit, that I do not think is frivolous, but it will be very hard to overcome the fact that the cyclist chose to speed down a hill, and that the cyclist might just be the most negligent party in this case.


Aiken & Scoptur jerseys are popping up all over! Here is A&S rider Chris D. riding in the Grand Teton National Park in Wyoming.

Looking good Chris! Safe riding.  Those hills in the back look menacing.

Take your A&S jersey somewhere?  Send me a picture and I'll post it for others to see.

Thursday, June 14, 2012

Tort Reform and Truth...

It has been a rallying cry for years and years and years now (always from republican legislators and groups like ALEC)... We Need Tort Reform! Personal injury lawyers are what is wrong with society. Only with caps on lawsuits against doctors can medicine work.  Only with laws prohibiting consumers from suing corrupt lenders and car dealers can our economy grow. Only with laws severely limiting lawsuits against corporations for wrongdoing or by those who are injured on the job can Wisconsin (ahem... Walker) and our economy grow.

As a personal injury lawyer, I obviously hear this often -- along with the usual "oh, so you are an ambulance chaser."  And as a personal injury lawyer, I am in a prime position to fight back against these lies and negative stereotypes.

But, the fight is hard and an uphill battle.  Corporations like ALEC have for numerous years pushed the anti-personal injury lawyer campaign.  And with the amounts of money ALEC, and corporations like it, amass, the have a huge head start in their campaign.  And it has been effective.  The second part of this battle is that there are personal injury lawyers who advertise about making lots of money when someone is injured.  These two factors work against other personal injury lawyers.  Both make me angry and sad.

The public has been brainwashed into thinking that all personal injury lawyers are greedy and don't care about their clients.  The public has been brainwashed into thinking insurance costs more because of personal injury lawyers.  The public has been brainwashed into thinking that the reason our economy sucks is because of personal injury lawyers.

Quite frankly, I've had enough.  Personal injury lawyers are the butt of jokes and scapegoats.  Our group is easy to pick on by ALEC and other groups because they cite to "frivolous" cases.  Although, they don't really cite, they distort the case or cases and they distort them for so long that soon the public believes the case happened as ALEC said it did.  In other words, people begin to believe the "truth", or what corporations and republicans want you to believe the truth is.

An easy example is the McDonald's case.  Ask someone today, and he or she will tell you that a lady spilled a coffee on herself, was not really injured, and got 5 million dollars.  What people forget is how badly the woman was injured from hot coffee and the degree of burns she received.  What people forget is that McDonald's knew that serving their coffee at the temperature they did would burn the flesh off of people.  What people forget is how ruthlessly McDonald's handled this case and tried to deal with the plaintiff.  If you knew the whole story, you would understand how non-frivolous this case was.  Oh, and the plaintiff did not get anything close to 5 million dollars.

But look at this email I received about medical malpractice cases in Wisconsin:

"People injured by medical negligence in Wisconsin have a difficult time recovering compensation for their injuries.  Data recently published show how difficult it has become.

The National Practitioner Data Bank recently tracked the number of payments made per year as a result of doctor negligence in Wisconsin.  Here are the numbers:

2001   115
2002   103
2003   120
2004     85
2005     89
2006     81
2007     77
2008     71
2009     75
2010     38
2011     54

The number of payments in 2011 was a 53% reduction from the number of payments in 2001.

The number of payments in 2010 was a 68% reduction from the number of payments in 2003.

 What do we compare these numbers to?  The authors of an article published in Health Affairs in April 2011 found that there are 1.5 million injuries caused each year as a result of medical errors.  Based on Wisconsin’s population, the state represents 1.9 percent of that amount, which equates to 28,500 people injured or killed each year by medical negligence.  Compare that number to the number of payments actually made and it becomes obvious how difficult it is to recover compensation for injuries caused by medical negligence.

 Confirmatory data come from the Wisconsin Medical Mediation Panels filings.  A person injured by medical negligence must first go through a medical mediation session before pursuing a case in court.  The updated numbers show the following numbers of requests:

1987     410
1988    353
1989    339
1990    348
1991    338
1992    313
1993    276
1994    292
1995    324
1996    243
1997    240
1998    305
1999    309
2000    280
2001    249
2002    264
2003    247
2004    240
2005    223
2006    235
2007    183
2008    147
2009    181
2010    169
2011    139
Do you notice a trend?  The last five years have been, by far, the lowest number of requests for mediation since the system began in 1987.

Wisconsin citizens must be told about the success the medical liability insurance companies have had in discouraging medical negligence cases from being filed.  Only when jurors understand the truth will injured people have a fighting chance of winning their cases in court."

So what does this data show?  It shows that ALEC and similar groups are winning at keeping legitimate cases out of Wisconsin courts.  By pushing the tort reform agenda, increasing costs for access to patient medical records, increasing costs for mediation, requiring a mediation, increasing costs for experts and deposition testimony and constantly lowering damage caps in medical malpractice actions, legitimate claims are pushed out of the courts.

That means, unless you have catastrophic injuries, it is going to be hard to find a lawyer that can help you.  As a personal injury lawyer, this is incredibly disheartening.  I am a personal injury lawyer because I want to help those who are injured through no fault of their own.  These are people who are hit by a drunk driver, operated on by an incompetent doctor, or even a good doctor that makes a terrible mistake during surgery.  These are people who are riding their bikes on a street and an angry or inattentive motorist strikes them from behind, causing injury.

What is most frustrating is that voters, and even citizens that don't vote, continue to buy in to propaganda against personal injury lawyers and laws that were designed and/or enacted to protect individuals and their legal rights.  Example: they vote for Walker because he promises jobs. 

What those voters don't realize or don't care about is that the creation of jobs comes at every citizens expense.  Laws protecting unions, consumer rights, and the rights you have do something when you are injured by a product, another person, medical malpractice and defective streets and roads have been repealed and/or severely limited.  These laws protect only corporations and the rich.  They do nothing but hamper or prohibit a plaintiff's lawyer from helping out someone who was injured or screwed over by a landlord or car dealer.  (These same people also don't realize there are other ways to create jobs without severely repealing or tightening laws intended to help citizens.)

So, what to do?  Rebel.  Speak up.  Act up.  Stop voting for corporations over people.  Start voting for politicians that actually care about individuals rights and protecting individuals from greedy corporations and predatory corporations and individuals.  Educate others on what really is going on.  Educate yourself on the fact that lawsuits don't increase your insurance rates, they don't increase the cost of medical care and treatment, and educate yourself on the fact that personal injury lawyers exist to help.  

At our core, at my core, is the desire to help those less fortunate, those that have been injured and need help seeking recourse.  Every person, every human being, should want to help every other person so that we can survive and prosper as a state, nation and world.  While recent changes to the law extremely hinder my ability to help, that doesn't mean I will stop fighting.  But I need help from others so that we can change the current tort reform climate and be able to fight back and get those with legitimate claims in to court to seek the justice they so desperately need and deserve.