Archive for the 'Personal Injury' Category

Judge Dismisses Personal Injury Case Against Gun Manufacturer

A federal court has dismissed a personal injury lawsuit directed at the gun manufacturer Smith & Wesson. The plaintiff was handling a gun when it accidentally went off, amputating his finger. The plaintiff’s claim is based on the idea that the gun had a mechanical defect and the powerhouse gun manufacturer should be held responsible.

Product Liability

Product liability refers to a manufacturer or seller being held liable for placing a defective product into the hands of the consumer. The vast majority of product liability cases are Gun Storedetermined at the state level. Product liability claims can be sought out under the theories of negligence, strict liability, or breach of warranty. Under negligence, the plaintiff would have to show that the manufacturer, in this case, Smith and Wesson:

  1. had a duty of care owed to the plaintiff,
  2. there was a breach of this duty, and
  3. this breach actually caused the injury.

In plain English, Smith and Wesson obviously have a duty to ensure that their firearms do not have mechanical defects. The difficult part here is being able to show that when plaintiff was handling the gun, it was a defect rather than mismanagement by the plaintiff that actually caused the injury. The Court ultimately held that the injury was not caused by a defect. Smith & Wesson are not liable. Strict liability and breach of warranty would probably not apply here either.

The Benefit of the Doubt

The point of all this is that it is quite difficult to show that a manufacturer of a product can be held liable. There are some circumstances where benefit will be given to plaintiff. Under a doctrine known as res ipsa loquitur, the burden of proof will shift to the defendant to show that they are not liable. It makes the path easier for the plaintiff. However, this doctrine is rarely invoked. For it to come into effect, the injury must have occurred because of someone’s negligence.

At the end of the day, it is quite difficult to pin the blame on the manufacturer because they are so far removed from the actual incident — an actual defect must be present before they are held accountable. Even if the plaintiff is somehow successful on his claim, Smith & Wesson could invoke comparative or contributory negligence as a defense. Based on the facts presented, the plaintiff was somewhat careless with the handling of the gun. This is not to say that there was not a defect but that there very well could have been mishandling of the firearm.

For all intents and purposes, unless the legal framework is reworked to give more deference to the plaintiff, manufacturers will win the majority of product liability cases. As mentioned earlier,  there are so many chains of distribution involved in the product that it will be quite difficult to reach the manufacturer who has no involvement in the actual cause of action.

Blowing the Whistle: Former Illinois Police Officer’s Retaliation Lawsuit

The police are there to ensure that laws are neutrally enforced. However, when police start showing favoritism to those with political connections, it often must be the police themselves who bring it to the attention of the public.  This was the situation which, at least allegedly, faced former Village of Orland Hills police officer Mr. David Kristofek.

Mr. Kristofek has been embroiled in a lawsuit with both the Village and its police chief for several years, accusing them of firing him in retaliation for his reporting inappropriate police behavior to the FBI. After narrowly avoiding dismissal several times, his case has just recently  passed the summary judgement phase.

The Village of Orland Hills Turns a Blind Eye

The facts certainly don’t look good for the Orland Hills police. After a traffic stop revealed that that a young man named Alonzo Marshall was driving a car with a suspended registration due to lack of insurance, Mr. Kristofek—along with two other police officers—arrested the man per police department policy.

However, after a slew of phone calls between Mr. Marshall, his mother, the Mayor of Village of Orland Hills, and the police chief Thomas Scully, Mr. Marshall was released and all record of the arrest was confiscated from Mr. Kristofek and deleted from police computers.  When Mr. Kristofek complained to the deputy police chief about the situation, he was told ““Did you not understand what you were [expletive] told?”  The deputy later told Mr. Kristofek that the situation was “above you and me.” Body Cam

Several months later, Mr. Kristofek attended a training seminar on official police misconduct. Ironically, the seminar included a hypothetical with near identical facts to the incident with Mr. Marshall and described it as official misconduct.  Mr. Kristofek grew concerned that he may be criminally liable for his actions and sought legal advice on the issue.  He was advised to report the incident to the FBI and reached out to the other two police officers on the arrest to join him in reporting the misconduct.  The other two officers both declined and Mr. Kristofek reported the incident alone.  What the two officers did do, however, was inform the police chief—Mr. Scully—that Mr. Kristofek was speaking with the FBI.

After learning this, Mr. Scully called Mr. Kristofek to his office, had him confirm that he was speaking to the FBI, and offered him a choice to resign or be fired. Kristofek refused to tender his resignation and was fired.  Scully spoke with a Village Administrator who approved the firing.  The stated reason was that Kristofek “contacted several members of this agency, telling them that the Chief of Police was a criminal and was going to be indicted,” and had “accused the Village of being corrupt.”

Mr. Kristofek filed a retaliation lawsuit against both Police Chief Scully and the Village of Orland Hills itself shortly after this.

Retaliation Explained

Retaliation, at its most basic, is where an employer takes negative employment action (firing, demoting, etc.) against an employee for some sort of protected conduct. Most retaliation lawsuits deal with an employee being fired for reporting an employer’s illegal employment practices.  However, it can apply where an employer takes negative employment action for basically any action an employee takes that is protected by law.

Here, Mr. Kristofek is making a First Amendment retaliation claim, arguing that he—as an employee of the government—was fired for exercising his right to free speech. This a claim that only really applies to public employees as private employers have a great deal of leeway when it comes to firing you for speech they don’t agree with.

In order to succeed in a First Amendment retaliation claim, a public employee such as Mr. Kristofek must show three things:

  1. their speech was constitutionally protected,
  2. this protected speech was the cause of negative employment action taken against them by their employer, and
  3. the employee suffered a harm as a result of this negative employment action.

In this case, the last bit isn’t particularly controversial; if you lose your job, you have been harmed.  The evidence also seems to point towards Mr. Kristofek being fired over speaking to the FBI.  This means that the more complicated issue is whether his speech was protected.

It certainly seems like it should be. If police aren’t protected when they blow the whistle on the misconduct of their fellow officers, it sets a heck of a bad precedent.

Mr. Kristofek’s Case So Far

The district court has dismissed Mr. Kristofek’s case not once, but twice, ruling against him on essentially every factor from whether he was speaking pursuant to his duties to whether the speech was even of public concern. Fortunately, the 7th Circuit Appeals court has reversed the district court both times and salvaged Mr. Kristofek’s lawsuit. This most recent time, the 7th Circuit has even assigned a new district court judge to review the case.

Scully successfully argued to the district court that reporting police misconduct is part of a policeman’s duties and thus speech in this vein is not made as a private citizen. He also argued that the speech was not of public concern, the interest in efficient police duties outweighed the interest in reporting to the FBI, and that the allegations themselves were baseless.

The 7th Circuit Appeals Court was buying none of it. Not only did they point out that courts have always considered reporting corruption a matter of serious public concern, they rejected Sully’s argument that reporting corruption was part of Kristofek’s job. This argument seems particularly silly; it amounts to an argument that Kristofek was fired for doing his job. However, the court rejected it on the grounds that there was no evidence that Kristofek had a duty as an officer to report the incident. The truth of the statements was ruled to be irrelevant because Kristofek’s speech would be protected, regardless of truthfulness, unless he actually knew or was reckless in not knowing that his allegations were false.

While the court felt that the interests weighed in favor of Mr. Kristofek in this case, they made it clear that there could be some cases where the interest in reporting potential misconduct could be outweighed by the disruption it could cause. Misconduct, as a strong public concern, requires a particularly convincing reasons to outweigh the public’s interest. However, where there is little factual basis to the allegations, the court said that the public’s interest could be outweighed.

Preventing police corruption is extremely important, just like all government corruption. The people closest to that corruption are the public employees who work around it.  It’s important that we zealously protect their ability to report misconduct because these employees may be the only people who could report such conduct.  This case is far from over, but the 7th Circuit Appeals court has helped ensure that public employees are receiving the protection they need.

Can a Catholic Hospital Refuse Medical Treatment For Religious Reasons?

What happens when a hospital refuses vital medical treatment due to the hospital’s religious beliefs?

In the United States, Catholic hospitals have come under scrutiny when reports emerged of women denied treatment due to their “ethical and religious directive.” In almost every case, it was a woman who was either pregnant and/or wished to prevent pregnancy.

How can hospitals, especially Catholic hospitals, deny necessary treatment? Regardless of religious affiliation, hospitals are there to treat and serve their community. How can the hospital be allowed to operate if they refuse necessary, life-saving treatment for those in need?

What Does the “Ethical and Religious Directive” Say?

In the United States, Catholic hospitals must follow the “ethical and religious directive” set by the Church. The Directive instructs that hospitals should treat all patients, including (but not limited to): the poor, those without insurance, single parents, the elderly, children, and “the unborn.”

The Directive states that a pregnant woman can undergo treatment or care, even at the risk of the fetus’s life, so long as their illness is “proportionately serious” in comparison to the loss of the fetus. In fact, the Directive uses the term “proportionately serious” when describing the health of a pregnant woman and an unborn fetus.

For these hospitals, the life of the unborn fetus is as important as the life of the pregnant woman in distress. In essence, the fetus is as much a patient as the mother. In fact, the directive also forbids the hospitals from sterilizing women, so they also treat the hypothetical “unborn.”

The doctors at the Catholic hospitals refused to perform an abortion, since the fetus’ heart was beating. Even after the women were bleeding heavily, in excruciating pain, developing an infection, and were told that their is no way for their child to survive.

Can a Hospital Refuse to Give Necessary Treatment?

No, a hospital cannot refuse to give a patient necessary treatment. However, the question is whether the treatment is necessary.

An abortion is not always necessary if the pregnancy would become a miscarriage. However, it is a common medical practice in the United States to perform a medically necessary abortion when a patient begins to show signs of infection and/or severe pain.

Many of the women in the report were experiencing severe pain and showing signs of infection. Instead, the Catholic hospitals turned away each patient and told them to wait in pain, discomfort, and fear until the fetus no longer had a heartbeat. In fact, to fight the pain and infection, they were given some aspirin and sent home.

It is easy to say that these women should have gone to a different hospital or facility; someplace that does not follow the Ethical and Religious Directive. But Catholic hospitals are growing in number, and in some states they account for 40% of available hospital beds. This means that for many of these women, finding a place that is not a Catholic hospital may mean hours of travel to receive treatment.

So Why is This Still Going On?

The state and federal government have not addressed the gap in treatment options that are due to religious directives. The government wants to encourage the creation and running of non-government run hospitals, but they cannot tell these hospitals how to operate.

Currently, hospitals may be required to have emergency services and not turn away impoverished patients. But women’s health and abortion issues are still heavily debated, in the government and around the dinner table. If the government cannot take a stand on abortion, then it would be hard to impose any requirement on hospitals.

But what can we do about women who are falling through the cracks of the system? These women are not seeking an abortion to end a healthy and viable fetus. They are seeking an abortion to help end the agony of a miscarriage after being told that their child will not survive.

Given the current landscape of women’s health, it seems like this issue will not be resolved any time soon. But for the health and safety of 50.8% of the United States population, we can only hope that it will stop being a question of politics and instead a question of public health and well-being.

What Taxpayers Ought to Know About IRS Scams

A recent upsurge of IRS phone scams in Fort Worth, Texas has brought national attention to the issue. So far this year, over $73,000 has been stolen from Fort Worth residents by callers claiming to be IRS employees. IRS phone scams are a nationwide problem. Last year, over 300,000 incidences were reported from all over the country.

These phone scams usually involve imposter IRS employees telling victims that they owe back taxes, or unpaid taxes, from a previous year. Sometimes, the scammers will threaten to call the police if the victim does not pay. Scammers will also claim that the victim is being audited in order to acquire financial information.

Having a basic understanding of IRS procedures for back-tax collections and audits will help alert you to scams.

IRS Collection Procedures

Individuals owe back taxes if they did not pay their taxes in full or in part. There are several steps the IRS takes to collect back taxes.

The first step in the collection process is to provide the taxpayer with notice, by sending a notice letter. This letter will contain a bill for the amount owed, including interest and penalties, and a demand for the taxpayer to pay in full. If the taxpayer does not respond to the IRS, it will send another letter with an assessed balance that includes interest and penalties. If you did not receive a notice prior to the phone call in question, it is likely a scam. IRS

If the taxpayer cannot pay-in-full there are usually several options available, such as installment agreements or offers-in-compromise. An installment agreement allows the taxpayer to pay incrementally. An offer-in-compromise is where the taxpayer negotiates with the IRS to pay a reduced amount in lieu of the full amount.

Only after the notice letter, and the taxpayer’s failure to pay, will the IRS initiate collection proceedings. Typically, the IRS files a Notice of Federal Tax Lien if the taxpayer fails to pay. A tax lien is a claim to the delinquent taxpayer’s property that is used as security for unpaid tax debt. The IRS will also use wage garnishments and bank levies to collect unpaid taxes.

IRS Audit Procedures

The IRS performs audits to review financial information and assess whether tax return information was reported accurately.  Taxpayers are selected for audits at random and when the information reported on their returns does not match their tax documentation, such as W-2s or Forms 1099s.

Audits begin with a mailed letter or phone call informing the taxpayer that he or she is being audited. If the IRS contacts the taxpayer by phone, a letter will be sent confirming the audit. These notification letters usually list documents and other materials that must be sent to the IRS. After the IRS reviews the information sent, it makes a determination whether the information reported was correct. If the taxpayer disagrees with the determination, then the taxpayer may appeal within 30 days.

If a caller asks for financial information directly over the phone, it is likely a scam since the IRS usually sends a letter confirming an audit and listing documents that must be sent.

IRS Scam Alerts

In addition to failing to follow IRS procedures, there are other common scam indicators. For instance, scammers frequently require unusual payment methods and threaten serious consequences unless their victim makes an immediate payment.

Reports state that the IRS imposters require payments through pre-loaded debit cards or wire transfers. Frequently, scammers will request iTunes gift cards as payments, telling their victims that the IRS has partnered with iTunes. The real IRS normally does not accept over-the-phone payments, even with regular debt or credit cards.

Victims are also frequently told that if they do not pay immediately, they will be arrested, deported, or face suspension of drivers’ licenses. Unless you have committed a serious tax crime, it is more likely that the IRS put a tax lien on your property. Tax liens usually show up on credit reports because the IRS files a Notice of Federal Tax Lien to put other creditors on notice. If no tax lien appears on your credit report, it is unlikely that you need to pay taxes immediately.

If an “IRS employee” does not follow the procedures for tax collection, audits, and refunds laid out above, it is likely a scam.

Congress Gives the Go-Ahead to 9/11 Lawsuits Against Saudi Arabia

Congress has recently overridden President Obama’s veto on the Justice Against Sponsors of Terrorism Act (JASTA), which is the first time that it has overridden any of Obama’s vetos. This controversial law allows for private citizens to sue the country of Saudi Arabia for the country’s role the 9/11 attacks in American courts.

Saudi Arabia has long been accused of having provided support to the terrorists who were responsible for the 9/11 attacks. After all, 15 of the hijackers were from Saudi Arabia. Osama bin Ladin, the late leader of Al Qaeda, had ties to the royal family, as his grandfather was the royal family’s architect.

However, the Saudi Arabian government’s role in the September 11 attacks appeared to be larger than what most Americans thought it was when Congress released the now-famous “28 pages” pulled from a 2002 congressional inquiry into the attacks earlier this year. Within that document, there are numerous examples of how Saudi Arabia appeared to have provided support to the hijackers.

This assistance ranged from an alleged Saudi intelligence officer who financially provided two of the hijackers a place to stay and helping them find an apartment in San Diego to a known senior Al Qaeda operations coordinator maintaining contact with various U.S.-based employees of the Saudi ambassador to the United States. When this information was made public, families of many of the victims wanted to hold Saudi Arabia responsible for its role in facilitating the attacks.

Saudi Arabia Liable For 9/11?

Aiding and abetting someone in committing a crime is a well-known crime in and of itself. A person can also be sued in civil court for assisting another in carrying out criminal activity. Currently, a person can only sue other people and organizations in civil court for their role in aiding and abetting in a crime that led to various injuries, such as a wrongful death or a significant loss of property.

However, JASTA will allow people who have suffered a physical injury, loss of property, or death as a result of a terrorist attack committed in the United States to file a lawsuit in federal court against a foreign state for the role that any of its officials, employees, or agents played in supporting the attack while acting in their official capacity. This act imposes liability on foreign states for knowingly providing help to known terrorist organizations who then carry out attacks on the United States. While most laws do not apply to events that have happened before they are enacted, JASTA also retroactively applies to events happening on or after September 11, 2001.

Normally, foreign governments are immune from lawsuits within the United States. Allowing people to sue foreign governments may negatively impact the federal government’s relationship with that foreign country. With this concern in mind, the Justice Against Sponsors of Terrorism Act does permit the Attorney General to stop any lawsuit on behalf of the Secretary of State. This can only be done in the event that the United States is engaged in good faith talks with the defendant concerning a resolution for the claims being brought against the defendant.

However, the stay on the lawsuit will only be allowed to last for 180 days, after which the Attorney General will have to request a 180-day extension to continue the stay if the discussions are still ongoing. Although the law, and, thus, the 180-day stay period, has yet to be tested, it does appear that the stay cannot be used to infinitely stall a lawsuit and otherwise provide the country immunity from terrorism-related lawsuits.

With the passage of JASTA, the families of those who died in the September 11 attacks can finally receive some form of justice by being able to bring lawsuits against Saudi Arabia for providing assistance to the hijackers and enabling them to carry out their attacks. It will also provide the victims of future terrorist attacks a path of recourse against any foreign government that decides to aid and abet members of terrorist organizations in their efforts to commit future terrorist attacks on American soil. If you or a loved one wish to bring a lawsuit against Saudi Arabia for the 9/11 attacks, it would be in your best interest to contact a personal injury attorney to discuss your new right to a lawsuit under JASTA.