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4 Copyright 2013 CelebrityPress LLC All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without prior written consent of the authors, except as provided by the United States of America copyright law. Published by CelebrityPress, Orlando, FL A division of The Celebrity Branding Agency Celebrity Branding is a registered trademark Printed in the United States of America. ISBN: LCCN: This publication is designed to provide accurate and authoritative information with regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The opinions expressed by the authors in this book are not endorsed by CelebrityPress and are the sole responsibility of the authors rendering the opinion. Most CelebrityPress titles are available at special quantity discounts for bulk purchases for sales promotions, premiums, fundraising, and educational use. Special versions or book excerpts can also be created to fit specific needs. For more information, please write: CelebrityPress 520 N. Orlando Ave, #2 Winter Park, FL or call Visit us online at

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7 Contents Chapter 1 Just One Little Item By John Bisnar, Esq. & Brian Chase, Esq Chapter 2 Litigating Bicycle Injury and Wrongful Death Cases By Jason Waechter, Esq Chapter 3 A Consumer Guide to Finding the Right Lawyer for Your Case Every time How to Find the Right Lawyer for Your Case Every Time By Ben Glass, Esq Chapter 4 The Contingency Fee: Leveling the Playing Field Between the Consumer and the Corporation By Jonas K. Seigel, Esq

8 Chapter 5 The Mourning After: Helping Families Cope After A Drunk Driving Wreck By Gary Martin Hays, Esq. & Derek M. Hays, Esq Chapter 6 Together, We Can Make a Difference By James Onder, Esq Chapter 7 Creating The Best Possible Quality Of Life For Accident Victims By Louis T. Brindisi, Esq Chapter 8 Employee Lawsuits: The Power of Many Acting As One By Scott Miller, Esq Chapter 9 OXYCONTIN: PROFIT FROM PAIN By Raymond F. Wagner, Q.C. & Libby Kinghorne, Esq

9 Chapter 10 Never Settle Prematurely By Rajesh Kanuru, Esq Chapter 11 Gone Too Soon A Disaster Waiting To Happen By Michael Slocumb, Esq Chapter 12 OUR HEALTH CARE SYSTEM BECOME A SURVIVOR, NOT A STATISTIC - Tips on How to Maximize your Health Care Experience By Randall Hood, Esq Chapter 13 Litigating Dog Bite Cases By Jason Waechter, Esq Chapter 14 PROTECT WHAT YOU VE WORKED FOR: NINE THINGS YOU MUST KNOW ABOUT TRADEMARKS By Nick Nanton, Brian Mencher & JW Dicks

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11 Just One Little Item Chapter 1 Just One Little Item By John Bisnar, Esq. & Brian Chase, Esq. The hype and hyperbole surrounding auto advertising has shifted in recent years. Yes, there is still the talk of value for the price, great performance and fabulous fuel efficiency, but most of the hard sell envelops how superbly safe every vehicle happens to be. Award winning, highly rated, thoroughly tested, mother approved the automakers tout whatever it takes to make you believe their auto, SUV or truck brand is Fort Knox on wheels, holding your family treasure safe and secure. Manufacturers love to run innumerable commercials, their products smashing into walls at high speed while they talk about multiple air bags, unibody framework, crumple zones, tough bumpers and more. Crash test dummies, strapped in and allegedly protected better than NASCAR drivers, emerge unharmed from horrific, and staged collisions; thus implying your family is shielded and sheltered. Yet, beneath the surface there are quietly released, regular industry ratings that reveal the very best made automotive products have an average of 134 problems as they roll off the assembly line. Top rated models boast of only 108 faults per unit pro- 11

12 Consumer s Advocate duced. The steel-reinforced door beams and air bag deployment speed provide fodder for test results and dramatic advertising. However, it is those little things, the nondescript items that often cause the big problems. Consumer advocacy groups often find the flaws, report to the government and then a recall occurs. On any given week, one can find thousands of vehicles being recalled for various problems. The automakers rarely discuss or reference these items and issues. They quietly take care of the issue, pay the fine, and hope the consumer and media sweep it under the rug to quickly forget the notion of defects. And just one of those little issues can change your whole world in a moment. Just like you, Jaklin Romine gave little thought to her driver s seat and the controls to adjust it. She just sat down in the car and got comfortable. While she was stopped at an intersection in Pasadena, California, her car was rear-ended. It was a collision at an average surface street speed. However, upon impact, Jaklin s seat snapped back, broke loose and then collapsed backward, all in less than a second. The flattened seat allowed her body to shoot rearward under the seat beat and shoulder restraint. The crash impact violently hurled her head first into the rear passenger seat, resulting in head and spinal trauma that permanently paralyzed her at the age of 19. Most might look at only the automaker for fault but John Bisnar and Brian Chase, principals at Bisnar Chase in Newport Beach, CA inspected the situation far more deeply. If vehicles are the sum of their parts, then when the various parts fail, those who produce those failed parts are culpable. Chase explained. Our investigation discovered that, in order to keep price points 12

13 Just One Little Item low, sacrifices were made in seemingly unobvious areas, such as the seat structure. It turned out that Johnson Controls, a giant corporation, had designed the seats cheaply. Their seat framework was fragile and lightweight not much stronger than a folding beach chair. The adjustment controls proved equally weak under even minimal stress. Thus, Jaklin s seat and the adjustment elements combined to create a scenario for failure and disaster under even minor crash conditions. Chase noted. At trial, Brian Chase presented evidence to the jury that Jaklin s seat was too weak to withstand impacts at speeds as low as 30 miles per hour, subjecting front seat occupants to serious risks such as head injuries, spinal cord injuries and vehicle ejection. Chase also presented evidence that Johnson Controls was legally responsible for the design, manufacture and sale of the defective seat, and therefore liable for damages because of its defects. Mr. Chase proved the manufacturers were fully aware of the defects but allowed them to go unmentioned and unrecalled. John Bisnar reflected on the case. Jaklin Romine had never heard of Johnson Controls. She used their product every time she drove her vehicle. Johnson Controls gambled on the possibility that a collision scenario would not occur to reveal their flaw. Statistically, it was only a matter of time before people were seriously injured or killed due to the faulty design and flimsy construction. Jaklin Romine became one of those statistics. And due to its cheap production, her car seat failed. And now she is confined to a wheelchair for life. Someone needed to stand up for her and her loss. Brian Chase and the Bisnar Chase team recovered a substantial amount of money for her loss. The money will provide her quality medical care, allow her to hire domestic assistance and make up for some of her lost income. It will not restore her bodily functions. It will not allow her to walk again. It will not replace 13

14 Consumer s Advocate her lost quality of life. It may however persuade Johnson Controls to make safer seats and persuade their automaker customers to demand safer products from their suppliers Bisnar Chase attorneys claimed that since the early to mid- 1990s, Johnson Controls was well aware of the dangers and risks of the weak seats they produced. Because of this knowledge, the company had actually developed a design which was much more structurally sound and which would prevent seats from collapsing in accidents such as this. In other words, the company knew they had a bad product, yet continued to produce it. That foreknowledge became a significant factor in their culpability. This is a classic example of big business putting profits over people, claimed Chase. While we re pleased with the ruling, nothing will ever replace Jaklin s loss. She ll never walk again. She will forever be confined to a wheelchair. This is a tragedy that could easily have been avoided. Jurors awarded Jaklin $24.7 million in damages for serious and permanent personal injury, medical expenses, loss of past and future earnings, and lost earning capacity. Yes, the automakers and the government continually hold up as a shining beacon the National Highway Traffic Safety Administration safety ratings under the agency s revamped and updated 5-star safety ratings program. The lawmakers and the auto industry will tell consumers how 24 passenger cars, 20 sport utility vehicles, two vans, and nine pickups will be rated under newer, tougher standards and systems that not only include tougher crash tests, but now provides consumers with a single overall safety score per vehicle; allegedly a new and shiny improvement. The consumer does not need to bother looking at all that crash data; one magic government number tells you everything! The new testing program will also provide consumers with scant information about new advanced 14

15 Just One Little Item crash avoidance technologies, such as lane departure and forward collision warning systems. Allegedly, new testing programs significantly and constantly raise the safety bar for all vehicle manufacturers, and will provide consumers with a great deal more safety information about the cars and trucks they are considering buying John Bisnar smiles with a ready retort. Perhaps may be precisely the prime issue. The addition of cameras, buzzers and such falderal are simple technologies. They may claim to warn, but they do not protect. If the driver is distracted by the super sound system or all the gee-wizardry of the heads-up display and spacecraft complexity, they may not get that last second warning. And a short warning is all they actually receive before impact. Brian Chase continues. The automakers and government entities will attempt to shift the blame to the drivers, saying that as manufacturers, they created the warning system and any collision is driver error. However, the error is in not fully protecting the vehicles occupants and depending on a cheap alarm bell to save the day. Several automakers have had very high profile recalls of their products. There have been horrendous recounts of fatal collisions. Huge amounts of money have been paid out to grieving families. However, take careful note where the most money is paid out: Toyota voluntarily agreed to pay an additional $ million in civil penalties as the result of two separate investigations into how the automaker handled its own various auto recalls. Toyota paid the maximum fines allowable under the law - $ million in one case and $ million in the other - in response to the Department s assertion that it failed to comply with the requirements of the National Traffic and Motor Vehicle Safety Act for reporting safety defects to NHTSA. The government exacts millions and millions in fines from automakers and virtually every component producer involved, from 15

16 Consumer s Advocate tires to seat belts to brakes. And it is still not enough to persuade the automakers and their parts makers to make safety a priority. Again, John Bisnar smiles and shakes his head in disbelief. In other words, it always seems more expedient to automakers to pay a huge fine than to actually report a defect, take care of a flaw or fix the problem on their own recourse. It is a languishing old mentality that hopes with bated breath that the poorly-crafted parts produced simply hold on long enough not to become a major issue. And in the opinion of Brian Chase, just one little safety defect is a major issue when it seriously injures or kills someone or fails to prevent an injury or death when it should have. What are the primary weak areas in vehicles that have never been addressed? What should the consumer be very wary of in seeking any auto, SUV or truck? Brian Chase outlines the most egregious defects to consider along with significant cases he has handled: 1. Defective seat backs. Surprisingly, auto safety authority Brian Chase states emphatically that when it comes to strength and structural integrity, driver and passenger seats are still as flimsy as a lawn chair, even though they can pass today s minimum safety requirements. During a crash, defective car seats break free from the floor, or defective seat backs flip down towards the rear compartment, causing restraint systems to fail and ejecting occupants around the interior of the vehicle. The Bisnar Chase law firm states many of its clients have been injured as a result of defective car seats, including the aforementioned Jaklin Romine who was awarded $24.7 million after being rendered a quadriplegic when her defective seat back collapsed. 16

17 Just One Little Item 2. Insufficient roof strength. Even after all the media stories about rollover crashes, today many vehicles still lack sufficient roof strength. Occupants can still sustain major head and spinal cord injuries along with blunt force trauma during rollover crashes. A crushed car roof also negatively compromises the functionality of seatbelts and windows. This inevitably leads to passenger ejection resulting in catastrophic injuries and death. Gloria Levesque, another Bisnar Chase client was rendered a quadriplegic in a Ford Expedition rollover accident after the SUV s substantially weak roof collapsed and crushed inward, causing her to sustain severe head and spinal cord injuries. The manufacturer settled that case. 3. Defective seat belts. Surprisingly, a large number of auto defects cases represented by Bisnar Chase involve seat belt malfunctions of one kind or another despite a number of touted restraint system advancements through the years. Seat belt defects include systems that are easily unlatched by flying objects or body parts during a crash. Other restraint systems are made with poorly designed webbing that loosens or tears in crashes. Still others become detached from their anchor points and mounts, causing injuries of their own to those they are supposed to protect. In the Bisnar Chase case of Joshua Newman, his defective seat belt gave way after he was hit by another car and his car crashed into a light pole. Joshua suffered a traumatic brain injury, chest trauma and heart failure. His passenger, whose seat belt did not fail, received minor injuries. 4. Defective windows. Windows serve more than simply keeping outside objects from entering a vehicle. They are also supposed to function as safety elements, providing visibility, and a degree 17

18 Consumer s Advocate of protection by keeping vehicle occupants inside. What Bisnar Chase attorneys have learned is that in certain vehicles, automakers have cut costs by using weak metal frameworks around windows usually located around side and rear windows and cheaper tempered glass that shatters more easily than laminated glass. Michael Samardzich, yet another Bisnar Chase client, was permanently blinded after flying shards of tempered glass pierced and ruptured his left eye in a crash involving a GMC Yukon in which he was a passenger. Another Bisnar Chase represented client, Carmen Todd, was killed in a GMC Yukon Denali rollover accident. The wrongful death case cited a malfunctioning and unsafe window design, among other defects, that allowed Carmen to be partially ejected from the vehicle. 6. Insufficient lateral and roll stability. Brian Chase emphatically points out the historical design flaws in higher profile vehicles like Sport Utility Vehicles (SUVs) and trucks, coupled with the lack of mandatory Electronic Stability Control (ESC), have made certain vehicles far more susceptible to loss of steering control and loss of traction control, thus resulting in rollovers. While all 2012 model year vehicles are required to have ESC in the U.S., not all cars manufactured before 2012 were equipped with ESC technology that was first introduced far back in Rollover crashes due to insufficient lateral and roll stability are quite common, commented Chase. As an auto defects expert and partner at Bisnar Chase Personal Injury Attorneys, LLP, he continually witnesses the tragic consequences of automaker s shortcuts. What s shocking is the 25-year lapse in mandating a technology like ESC which has been proven to fully prevent one-third of the nation s fatal car accidents. When it comes right down to it, safety features are usually a reluctantly-added ex- 18

19 Just One Little Item pense. What we ve learned is that automakers simply care more about profitability than they do about protecting innocent motorists. One of the premier consumer advocacy law firms in the nation, Bisnar Chase (BestAttorney.com) regularly represents people who have been very seriously injured or lost a family member due to a defective product, an accident or negligence. The firm specializes in catastrophic injury and wrongful death traffic collisions involving defective cars and/or negligent drivers. Operating from their Newport Beach, CA offices, Bisnar Chase lawyers have won a wide variety of auto defect cases against most of the major auto manufacturers, including Ford, General Motors, Toyota and Chrysler. Brian Chase, the firm s lead trial attorney, is the author of the most up-to-date and comprehensive auto defect book available today, Still Unsafe at Any Speed: Auto Defects that Cause Wrongful Deaths and Catastrophic Injuries. The book is currently being updated to reflect the current automotive standards, attitudes, and issues. He is also the recipient of two Attorney of the Year awards from trial lawyer associations for his work representing injured people in auto defect cases one in 2004 and the other in For more information, visit Mr. Chase s blog at: 19

20 Consumer s Advocate About John A month after starting law school in 1974, John Bisnar was seriously injured in a traffic collision by a negligent driver. He hired the only personal injury attorney he knew, one of his law school professors. His horrible experience as a client of the well-respected personal injury attorney left Mr. Bisnar with a bad impression of attorneys. My attorney gave me no advice or direction. He didn t care about my case or me. He didn t return my calls or answer my questions. He didn t fight for me and he outright lied to me, says Mr. Bisnar. As it turns out, Mr. Bisnar s experience as a personal injury client shaped his professional carrier. I vowed to provide people the type of client experience that I wished I had received. People want an attorney they trust, who is passionate about their case and who gets results, Mr. Bisnar emphatically states. Since he started his law firm in 1978, thousands of people have trusted him with their case. Martindale-Hubbell, the most respected law firm rating service, has awarded his law firm, Bisnar Chase its highest rating for ethical standards and professional ability. Their nearly $200 million in settlements and judgments with a 97% success rate spells results. John is a nationally recognized expert on law firm marketing and management. He has been a featured speaker at lawyer seminars, workshops, and mastermind groups. Your employees will not treat your clients any better than they are treated, Mr. Bisnar teaches. It is no wonder that the Orange County Business Journal has named his law firm one of the Best Places to Work. Mr. Bisnar was born and raised in Southern California. He is married, father of three and grandfather to one. He is an avid snow skier, scuba diver, organic gardener and traveler. He went to college on the G.I. Bill having served in Southeast Asia during the Vietnam War. He graduated with honors, earning a degree in Business/ Finance and then earned a law degree at Pepperdine. John has the highest 20

21 Just One Little Item possible attorney rating awarded by the most consulted lawyer rating service, AVVO, which is Superb 10 out of 10. John has a string of awards and honors such as being named: Community Hero by the Orange County United Way Top Southern California Attorney by L.A. Magazine Top Orange County Lawyer by Orange Coast Magazine Super Lawyer five years running by Super Lawyers His law firm was included in Newsweek s list of The Best of LA Law and featured in a number of television news exposés as experts in automobile defects that are causing catastrophic injuries. John is the author of a book on personal injury claims, The Seven Fatal Mistakes, a co-author of the best-selling book Wolf In Sheep s Clothing, a contributing author of the State Bar of California s book, How to Open and Manage a Law Firm and the author of hundreds of articles on the Internet. The accolades Mr. Bisnar receives from clients are the ones he cherishes the most. For example, at the conclusion of a challenging case against a governmental agency, the parents of the brain-injured teenager called Mr. Bisnar, the angel we prayed for. 21

22 Consumer s Advocate About Brian Brian D. Chase, Esq. was named a 2004 Trial Lawyer of the Year after an impressive string of successful product defect cases, Brian Chase was also named one of the Top 100 Trial Lawyers by the American Trial Lawyers Association. He is the Litigation Partner of the BISNAR CHASE Personal Injury Attorneys law firm headquartered in Newport Beach, California. Mr. Chase has litigated dozens of jury trials, has obtained hundreds of millions of dollars in settlements and judgments and is AV rated by Martindale Hubbell. His law firm specializes in catastrophic injury cases caused by accidents and defective products, with a primary focus on defective automobiles. Chase was lead attorney on three important, precedent-setting appellate opinions: Schreiber v. Estate of Kiser (a California Supreme Court case dealing with expert witness designations); Hernandez v. State of California (an appellate case from the Second Appellate District dealing with governmental design immunity); and Levesque v. Ford Motor Company (an auto products case dealing with Forum Non Conveniens). In 2009, he was named a Top Lawyer in Orange County by OC Metro magazine. In 2010, he was named a Top 50 Orange County Super Lawyer by Orange Coast Magazine for the fourth consecutive year. Chase is also a Vice President of the Consumer Attorneys of California and a past President of the Orange County Trial Lawyers Association. He is a frequent lecturer on litigation-related topics in continuing education programs for trial lawyers. His book Still Unsafe At Any Speed is the most comprehensive literary work on auto defects since Ralph Nader s 1965 book of the same subject, Unsafe At Any Speed. Chase is a graduate of Pepperdine University School of Law, where he earned a JD degree and was associate editor of the Pepperdine Law Review. He currently resides with his two daughters in southern California. 22

23 Litigating Bicycle Injury and Wrongful Death Cases Chapter 2 Litigating Bicycle Injury and Wrongful Death Cases By Jason Waechter, Esq. Some attorneys believe that handling a car accident case involving a bicyclist is no different than a car-versus-car accident case. However, there are several significant nuances that the litigator representing an injured bicyclist must consider. Some Statistics: The Insurance Institute for Highway Safety reported the following in regard to bicycle fatalities from 1975 to Some interesting highlights that are instructive include: 660 bicyclists were killed in crashes with motor vehicles in This is 9 percent fewer than in 2001 and down 34 percent since Bicycle deaths are most likely to occur in summer. Deaths are most likely to occur on Fridays and Saturdays. The peak time is 3-9 pm. The rest of the data is based on the sole year of 1999: 98 percent of bicyclists killed reportedly weren t wearing helmets. 23

24 Consumer s Advocate Deaths of older bicyclists are an increasing problem. 71 percent of bicycle deaths were riders 16 years and older. This compares with 32 percent of bicycle deaths in Four states (California, Florida, New York, and Texas) accounted for 43 percent of bicycle deaths. More bicyclists were killed in urban areas than in rural areas (64 percent compared with 36 percent). 35 percent of bicycle deaths occurred at intersections. 57 percent of bicycle deaths occurred on major roads, and 37 percent occurred on local roads. 59 percent of bicycle deaths among children younger than 13 and 27 percent of adult bicycle deaths occur on minor roads. Adult bicyclists are more likely than children to be killed on major roads (67 percent compared with 38 percent). More current data is available from the National Highway Traffic Safety Administration s (NHTSA) Traffic Safety Facts 2007 Data: In 2007, 698 bicyclists were killed and an additional 44,000 were injured in traffic crashes. Basic Background As a starting point, a litigator should know that most state laws allow a bicyclist to ride in any traffic lane, but require the bicyclist to stay as far to the right as possible. They require the bicyclist to obey traffic signals, not to ride more than two abreast in a single lane, and to ride in the same direction as the flow of traffic. The Negligence Case The civil-legal cause of action a bicyclist may have against a vehicle driver after a crash is that of negligence. It must be proven that the driver owed a duty to the bicyclist, that the duty was breached, that there were damages (injuries) and that the breach of the duty was a cause of the damages. A driver owes a duty to a bicyclist to act reasonably and follow the traffic laws. If he or 24

25 Litigating Bicycle Injury and Wrongful Death Cases she breaches that duty and hits a cyclist causing injury, the driver is responsible for the harm that he or she has caused. Each state s laws are a little different. Major differences between states affecting bicycle-versus-car-accident cases may depend on whether the state has a No-Fault Insurance law or an injury threshold requirement. No-Fault Insurance states do not require proof of fault or negligence to pay certain items (e.g. medical bills and wage loss). A threshold requirement may necessitate a certain level of injury for pain-and-suffering compensation (e.g. a permanent injury, a certain dollar amount in medical bills, a certain kind of injury, number of days disabled, etc.). Tips to Prove Negligence The Rules: A litigation technique that has been recently popularized by Alaskan attorney Rick Friedman is called, The Rules of the Road, and it works well when handling a bicycle-versusmotor-vehicle crash. The technique plays on our life history of playing by and living by rules. The lawyer establishes rules for the conduct of the defendant and then shows how the defendant has broken them. In a bicycle-versus-motor-vehicle case, the rules are simple; they are the traffic laws. The Driving Manual: States either have a Department of Motor Vehicles or Secretary of State that is in charge of testing drivers and issuing driver s licenses. They all have driving manuals that explain the traffic laws and Rules of the Road. Visit your local licensing office to obtain copies of these materials. Find the sections in them that warn drivers to look for bicycles and how to drive when they are around. Other rules I have found in Driving Manuals that can be developed in these cases include the following: Share the road: When driving, you share the road with pedestrians, bicycles and motorcycles. Use extra care when sharing the road with bicycles... they are small and hard to see. 25

26 Consumer s Advocate Yield in certain situations: Before entering an intersection always check cross traffic. Be prepared to stop and yield the right-of-way to a vehicle or bicycle coming from the left and right. When turning at an intersection, into a driveway, or pulling off the road, check for a bicyclist coming up from behind on the shoulder of the roadway or a bicycle lane... do not overtake a bicyclist and turn right unless it is safe to do so. Use these rules in the defendant driver s deposition. The defendant must agree to know the rules, and if he or she does not, the driver is exposed as being ignorant or lying. The jurors will be familiar with the driving manual, and they will conclude, themselves, that the driver was negligent. This is much more powerful than the lawyer telling the jurors so. Common Types of Bicycle Crashes Some of the common types of crashes that involve bicycles include: Overtaking or passing crashes: When a car passes a bicyclist going the same direction, the driver of the car has a duty to do so in a reasonable manner which includes keeping a reasonable distance from the bicycle. In these cases, when the motorist fails to accept responsibility, I ll simply ask in his deposition, Well, in your opinion is it reasonable to hit a bicyclist as you pass her? Nighttime crashes: Crashes that occur at night can be a problem for the attorney representing the bicyclist. The defense attorney will argue that it is unreasonable for the bicyclist to be out after dark because it is difficult to see him. It is important to investigate the lights, reflectors, and clothing of the cyclist. Secure it, keep it and photograph it. Hiring a conspicuity expert may be helpful (see below). Left turn at intersection: A car turning left at an intersection hitting a bicyclist that is going straight is common. The driver of the car has a duty to make sure traffic, including bicycles, is clear before making a left turn. The 26

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