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July 2010 Archives

Jonathan Acklen Responds To Paul Carpenter

- Below is a well written response to a Paul Carpenter opinion piece where he, once again, attacks our system of justice, the jury system,  and lawyers who represent the disadvantaged.- Paul Carpenter's tort reform proposals are dangerous. He states that his main concern is the impact "such lawyers" (referring to attorneys who represent injured victims) have on average people. So his response to this concern is to publish what he refers to as common-sense proposals. These proposals are an attack on the rights of children, senior citizens, and low and non-wage earners. Mr. Carpenter's proposal would severely limit if not completely take away any right to compensation for injury held by a senior citizen with either a short or nonexistent work life expectancy. Mr. Carpenter has in effect placed a $250,000 on cap on how much a retired mother or grandmother's life is worth. Think about it, he states that compensatory awards are alright but he claims limits are needed for awards that go "beyond compensation for actual harm." What does that mean? It means that even if a jury believes that a maimed child who will live the rest of their life in physical and/or emotional pain is entitled to compensation for their suffering, they do not have actual harm above his arbitrary limit. It also means that a retired grandmother who becomes quadriplegic due to medical negligence and now must live the remainder of her life trapped in a body she can no longer use to play with her grandchildren suffers no "actual" harm beyond $250,000. Reader, if you are retired and you suffer a life-altering injury caused by someone else's conduct, should you not have the right to prove your harm to a jury of your peers? The people who would suffer the most if a cap system were in place are those people that some of us believe we have a duty to protect, the vulnerable people: children, senior citizens, minimum wage earners, and non-wage earners such as stay-at-home parents. In addition, caps on noneconomic damages are also unconstitutional. The founding fathers intended for civil disputes to be decided by jurors. Caps on non-economic damages, pain and suffering, remove a crucial part of civil justice from the system. In a civil suit, the attorneys for the injured victim most often work on a contingency basis. They do not get paid unless they are able to help their client obtain a recovery. I would call that a "cap" on fees. Attorneys who defend wrongdoers, however, are paid regardless of the outcome and regardless of how long it takes to reach that outcome. In other words, there may be a situation where a fair resolution is possible but rebuffed by the attorney for the wrongdoer, forcing everyone to spend more money and time when all could have been resolved fairly very early on. Further, the attorneys for the injured victim typically take on all costs of litigation until a recovery is obtained. That means that if an attorney has to spend tens or hundreds of thousands or even millions of dollars to pursue a claim for a victim, they risk losing all this in addition to getting no fee for the time spend and work done on the case. This system is the best check on "frivolous" lawsuits there is. Not many people are going to risk hundreds of thousands of dollars to pursue a case on a whim. The conservative think tank, American Enterprise Institute, conducted a study in 2005, "Two Cheers for Contingent Fees," concluding that such a fee system deters bogus lawsuits. It found that lawyers paid an hourly rate (like those who represent the precious insurance companies defending the perpetrators of harm) are likely to prolong settling cases, as opposed to attorneys charging on a contingent basis. In 1986, James Gattuso, who at the time was with the Heritage Foundation, wrote an article for the Wall Street Journal entitled "Don't Rush to Condemn Contingency Fees." He stated the truth about these fees - that they ensure that injured people who would otherwise be unable to afford legal representation have equal access to the legal system and "rather than encourage baseless lawsuits, the contingent fee actually helps screen them out of the system." Finally, limits on fees would amount to price controls, a clear violation of free market principals. Who else's income should we limit Mr. Carpenter? It's easy to attack protectors of victims when you use derogatory terms like "ambulance chaser". Mr. Carpenter uses terms like "award" and "jackpot" and "fee grab" to cloud what truly occurs. Words like justice, compensation, and earning an income might be more accurate but clearly less dramatic. No victim would prefer to suffer through a traumatic loss of a loved one or a life-changing injury to get an "award" but we can't rewind the clock and stop the perpetrator from committing their acts of harm. A jury decides these amounts, not the slot machines in Bethlehem. I don't understand why Mr. Carpenter thinks he is able to determine how much an attorney protecting a victim should earn when that amount is solely based on the quality of help that attorney provides for the victim. Few other professionals are paid, or would like to be paid, based solely on results. I know attorneys have offered to discuss these issues with Mr. Carpenter because if he had an accurate understanding of how the civil justice system really works he may change some of his opinions. Instead, he would rather sit ignorantly by and spout off comments that put the rights of victims, especially children, senior citizens, and stay-at-home parents, in peril. Jonathan B. Acklen

Motorcycle Diaries Part V - Live Free Ride Alive

Yesterday the Morning Call, on-line edition, ran a story about PennDOT's proactive program on motorcycle safety. The side bar featured a link to a site which contained an 18 minute documentary filled with real life interviews and comments from guys and gals, many who have been riding for most of their life. As a rider and someone who has lost one of his closest friends in a left turn accident this video speaks volumes. Recently, I posted on the lunacy of those who ride without a helmet and proper equipment. No one likes the wind in their face more than me but the thing sitting on our shoulders does not bounce real well when it hits the sidewalk. PennDOT is to be congratulated and I hope they send a copy of this video to our governor who promoted and signed the legislation that removed the helmet requirement. In the addition to the video the site is filled with helpful information and safety tips. This site is well laid out with sections devoted to rider training and a section which has a timed test and which measures your recall about the meaning of different road signs. It also poses a series of still videos each with real life road situation that all of us have experienced, and then tests you on what is the proper evasive move. Pretty cool - After taking the test you get a score. I got 18 out of 20 on each test. It is also filled with facts and figures - did you know that in 2009 there were 3,736 motorcycle crashes resulting in 204 fatalities and 3,677 injures? One out of five results in head injuries. Here's the one that impressed me the most: at speeds of 30 mph or less helmets reduce head injury by 50%. The rider testimonials are some of the most powerful I have ever seen. Visitors to the site are asked to take the PennDOT "be one less pledge". The pledge acknowledges that you agree "to be one less statistic". Take the pledge and join hundreds of others whose names appears on the Wall. This proactive site sends a strong message and reminder to all of us. I know it takes some of the fun and enjoyment out of getting on your bike when you read and listen to these statistics, but if just one injury is prevented then it's done its job. Yesterday, on the way home from work I saw a couple on a nice Yamaha. They both were not wearing a helmet and were not using any protective gear. The passenger was wearing shorts and a tank top with flip-flops. I could tell they were both very young. That age were you think it will not happen to you? As older riders we have an obligation to educate our younger brethren. I'm not talking about being smart mouthed, but just a friendly -  hey man lets live to ride another day. Later this week I will be meeting with one of my bike clients to give him a check on a case that I am handling for him. Trust me the money will never compensate him for his losses. A car pulled out from a stop sign right into him and never stopped. As the PennDOT site states, "live free ride free."   Take the pledge. Dennis F. Feeley

Breast Cancer Often Over Diagnosed

The New York Times published findings which support the contention that pathologists are misdiagnosing breast cancer at alarming rates. Ductal carcinoma in situ, or D.C.I.S. is the earliest form of detectable breast cancer.

Helmet Saves Womans Life

Many years ago when Cohen & Feeley first started community service related marketing we did a series of outdoor bill boards dealing with seatbelts, DUI related accidents and the importance of teaching children to use helmets when riding bikes or using skateboards. Recently, a Topton woman in a YouTube video claims that her helmet saved her life youtube. The young woman in the video was struck by a pickup truck while riding her bike. The testamentary looks to be sponsored by The Lehigh Valley Health Network who is the Valleys major health care provider. We congratulate them and stand behind the commitment to educate everyone about the risks of head injury associated with biking, skating and boarding. Interestingly, some of the comments following this video are absurd and reject all common sense. There is a certain mentality that runs against the grain of making life safer - I guess under the theory that any such suggestion might infringe on one's personal liberty. You know the one that says it's my right to become a quadriplegic. A rather selfish outlook since it's the rest of us who will be burdened with their care. Our current governor lobbied the motorcycle clubs and promised them he would revoke Pennsylvania's law requiring the use of a helmet while operating a motorcycle. True to his word, one of his first acts as governor was to have the law abolished. A helmet is no longer required. As a biker and motorcyclist of many years I would never consider riding my bike without a helmet. Yes, it does interfere with the feeling of freedom as the fresh air (and bugs) hit your face, but they save lives and reduce injury. As a practicing personal injury lawyer of nearly 30 years I have represented many motorcyclist and their families. I know first hand how seriously injured a person can become as a result of a biking accident. Oddly enough in most cases it is not the biker who is at fault. The best way to instill these ideas is through example to our children. Helmets do prevent injury and don't let anyone try to convince you otherwise. Dennis F. Feeley

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