The False Claims Act: From Shoddy Civil War Uniforms to Costly Defense Contracts in 2014

October 20, 2014 by Gregory J. Brod

As readers of this blog know, the False Claims Act (“the Act”) is an important tool for combatting health care fraud. The Act allows our Northern California whistleblowers’ law firm to partner with private whistleblowers to fight back against schemes that divert tens of billions of dollars from Medicare, Medicaid, and other health care programs annually. This is a critically important battle, but the Act goes well beyond health care and defense contract fraud is one important example. A recently filed case illustrates the Act’s role in fighting the costly problem of fraud in military contracting. Further, the Act’s history serves as a reminder of the threat to our military personnel when companies try to cheat the government.

Government Joins Suit Alleging Defense Contract Fraud
On Thursday October 16, the Department of Justice (“DOJ”) issued a press release announcing that the government was joining a whistleblower complaint against Sikorsky Aircraft Corporation(“Sikorsky”), a subsidiary of United Technologies Corporation, and two Sikorsky subsidiaries. Originally, the case was filed under the Act’s qui tam provisions by a former employee of the subcontractor. A representative of the DOJ’s Civil Division explains the decision to intervene: “Today’s complaint demonstrates, once again, that the Department of Justice will not tolerate contractors who engage in schemes to defraud the armed forces or any other agency of the United States.”

contract2.jpgThe claims involve Sikorsky’s alleged approval of a cost-plus-a-percentage-of-cost subcontract. Such contracts are sometimes used when the cost of performance is not known upfront; compensation is calculated based on cost to perform plus a set percent of that cost. Defense/military contracting rules prohibit these arrangements because they provide no incentive for contractors to control costs. The complaint alleges Sikorsky approved an illegal subcontract and used it to overcharge the Navy for parts and materials used for aircraft maintenance. Echoing the DOJ official’s comments, U.S. Attorney James L. Santelle explained: ““Under the authority of the False Claims Act, we pursue fraud of this sort to ensure that taxpayer dollars are spent lawfully and that overcharges and other types of contracting misconduct are addressed.”

The Act’s History: Financially Strapped Civil War Era Congress Looks to Whistleblowers to Fight Fraud Endangering Union Soldiers
Earlier this month, KRCU, an NPR station at Southeast Missouri State University, reported on the history of the False Claims Act and its modern role. The report explains that the Act that has led to the recovery of tens of billions already this year began as a way to protect Union soldiers during the Civil War. Union troops relied on private contractors for a range of necessities, but contractors often cut corners and they found themselves with uniforms that dissolved in rain, horses that were weak and even blind, and gunpowder mixed with sawdust. Since the government lacked the money to investigate these frauds, Congress created an incentive for private citizens to report on their employers by promising to pay the employee half of any fine collected.

When the Civil War ended, the law was weakened and all but forgotten until the 1980s. As reports of outrageous military spending surfaced, Congress resurrected (and revised) the Act. Whistleblowers became increasingly important, this time reaching beyond military contracts to areas such as health care and pharmaceuticals.

Fighting Fraud in 2014
The report expresses some doubt about the Act’s current power to reduce fraud given that, in contrast to an era when companies were smaller and fines could bankrupt an organization and its leaders, shareholders tend to foot the bill following a claim and there is not personal accountability. However, the report doesn’t point to direct evidence of this assertion. Regardless, it is clear that legislation that began as a way to protect an army now helps the government recover billions of wrongfully diverted funds.

It is also clear that whistleblowers remain critical, in part because the size of companies makes it difficult if not impossible for an outsider to pinpoint fraudulent acts. If you have witnessed any form of government contracting fraud, including fraud in defense contracting as well as fraud tied to government health care programs, coming forward can provide both moral and financial rewards. In today’s environment, partnering with a law firm that understands the False Claims Act (including its whistleblower protections and potential rewards) is a necessity. Call any of our Northern California government contracts fraud law offices to arrange a meeting to discuss in greater detail how a Civil War era concept can fight modern day fraud.

See Related Blog Posts:
Whistleblowers’ Attorney Discusses Guilty Plea in Case Involving Contractor Providing Substandard Parts to Department of Defense
Fighting Fraud: Government Contract Fraud Attorney Examines Procurement Fraud

(Image by Dan Moyle)

Bay Area’s Spike in Rents Presents Incentive for Landlords to Turn Over Units

October 17, 2014 by Gregory J. Brod

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With the San Francisco Bay Area long one of the most desirable areas in the country to live in and apartments in short supply for a variety of reasons, there is little surprise that rents in the region would be among the highest in the nation. But a report released Wednesday showed that rents have reached record highs in the Bay Area, a fact that prompts San Francisco landlord-tenant law attorney Gregory J. Brod to remind us that some landlords, especially of rent-controlled units, may be tempted to employ illegal means to get their tenants to move out so they can raise rents.

According to the San Jose Mercury News, a third-quarter report from RealFacts of Novato found that rents in the Bay Area have risen 11.4 percent from the third quarter of last year to an average of $2,234 per month, which is the highest level recorded since two decades ago. More category-specific, the rent increases are reflected in the following year-over-year gains in the nine-county region: for a studio apartment, $1,931, up 12.5 percent; one bedroom, one bath, $2,017, up 11.8 percent; two bedroom, one bath, $2,006, up 11 percent; two bedroom, two bath, $2,562, up 9.8 percent; three bed, two bath, $3,022, up 13.5 percent.
Among the five inner Bay Area counties, here are some additional figures concerning third-quarter 2014 over third-quarter 2013 average rents:

  • San Francisco: $3,400 a month, up 9.8 percent, with a 95.1 percent occupancy rate.
  • San Mateo County: $2,580 a month, up 10.7 percent, with a 94.3 percent occupancy rate.
  • Alameda County: $1,994 a month, up 11.6 percent, with a 97.3 percent occupancy rate.
  • Contra Costa County: $1,659 a month, up 8.8 percent, with a 96.8 percent occupancy rate.
  • Santa Clara County: $2,369 a month, up 10.7 percent, with a 95.8 percent occupancy rate.

With rent increases such as the foregoing, it’s not hard to imagine that there is an economic incentive for some landlords to turn over apartments, especially rent-controlled units, so that they can reap bigger rents or even take units off the market and repurpose them as condominiums for sale. The latter move is often accomplished in California through a controversial Ellis Act eviction, but landlords can also resort to various methods of harassment to get tenants to abandon their units. Harassment can appear in various guises, which include but are not limited to interrupting, terminating or failing to provide housing services required by contract or by state, county or local housing, health or safety laws; failure to perform repairs and legally required maintenance; abuse of the landlord’s right of access to the unit as provided by laws; and attempts to coerce the tenant to leave the premises with offers of payments that are accompanied by threats or intimidation. Indeed, the list of various forms of harassment is a long one, and harassment is spelled out in municipal ordinances, including San Francisco’s special provision on harassment, Section 37.10B.

Continue reading "Bay Area’s Spike in Rents Presents Incentive for Landlords to Turn Over Units" »

The Dangerous Intersection of Drowsy Driving and Big Rig Accidents

October 17, 2014 by Gregory J. Brod

Few among us haven’t experienced it, you feel your eyes get heavy and begin to close only to startle yourself back to reality; a moment of extreme fatigue that is extremely frightening when it happens while you’re behind the wheel. In modern America, being sleep deprived seems to be the norm and it is frightening to consider how many drowsy drivers are travelling at any given moment. Drowsy driving becomes even more frightening when the tired driver is at the wheel of a big rig truck. For too long, companies have incentivized drivers to push the limits and log as many hours as they can fit in a day. Our Oakland drowsy driving law firm represents those injured in accidents caused by drowsy truck drivers and also supports efforts to prevent truck drivers from driving while fatigued.

Truck Overturns in Vallejo, Driver Reports Fatigue Was Key Factor
On Tuesday morning, as ABC7 reports, a box truck overturned in Vallejo along I-80 West near the state Highway 37 overpass. Truck driver Jesus Osegura, age 24 of Sacramento, told the California Highway Patrol that he had been falling asleep and nearly collided with the back of another truck. Osegura made a sudden, abrupt turn to avoid the collision, causing the load to shift and the truck to overturn. CHP officers report that Osegura was able to climb out of the overturned vehicle but noted neck and leg pain. The incident occurred around 3 A.M.

Truck Industry and Safety Groups Debate Issue of Drowsy Driving Among Big Rig Drivers
This summer, the danger of drowsy big rig drivers took the national spotlight when actor Tracey Morgan was seriously injured in a crash allegedly caused by a truck driver who had not slept for over 24 hours. Reporting on the topic of drowsy truck drivers and relating the story of a previous drowsy driving truck accident that killed ten people, The New York Times noted: “What is remarkable about these events…is how common such accidents are.”

The article calls attention to a battle between authorities attempting to pass safety regulations and an industry where miles, and time, are money. Last year, federal rules reduced the maximum number of hours a trucker could work from 82 per week to 70 per week. Drivers who bigrig.jpgreach the high mark must rest for at least 34 hours including two segments of time between 1 A.M. and 5 A.M. The rules also include an 11 hour daily driving limit with at least one scheduled 30 minute break. Trucking industry officials say the new rules mean more trucks travelling during peak travel/traffic times. They say anti-trucking groups have overstated the issue of fatigue, suggesting drivers should be given flexibility in their work and shouldn’t be given mandates on when to rest.

Safety advocates disagree, taking the position is that fatigue is actually underreported (even if difficult to prove conclusively) and has become increasingly dangerous as traffic conditions demand maximum attentiveness. Part of the reason for the debate is the fact that it is difficult to prove that fatigue was a factor in a collision. Deborah A. P. Hersman, former N.T.S.B. chairwoman and current chief executive for the National Safety Council, states: “Until we have a blood test for determining fatigue, all estimates are likely going to underreport fatigue, because the dead don’t speak and the living often plead the Fifth, especially if they are facing criminal charges.”

Our Northern California Drowsy Truck Driving Crash Attorney on Prevention and Representation
While exact statistics may be difficult to pinpoint, we believe it is abundantly clear that drowsy driving is dangerous. We support efforts to combat drowsy driving in all forms. We also support efforts to prevent trucking accidents given the enormous potential for damage involved. We hope that conversations about the intersection of the two continue, the issue is too important to ignore. Our Oakland drowsy driving accident law firm will also continue to advocate on behalf of those injured or killed by drowsy drivers, whether the driver was behind the wheel of a large truck, a passenger car, or even operating a motorcycle.

See Related Blog Posts:
Sentencing in Sonoma Puts Spotlight on Underreported Problem of Drowsy Driving
Big-Rigs & California Injury Law: Considering Accident Law Following Fatal Bay Area Accident

(Image by Mark Holloway)

“The Sky Is Falling!”: Bay Area Injury Lawyer Examines Legal Rights Following Injuries from Falling Debris

October 15, 2014 by Gregory J. Brod

It may seem like something out of fiction, or even out of an old-school cartoon, but the problem of falling debris is quite real. There are a wide-range of related scenarios such as debris from a crumbling building hitting a passerby, a customer being injured by an item tumbling from a store shelf, or a worker buildingedge.jpgbeing injured by material falling off a warehouse storage rack. Whether it is debris, merchandise, or other materials, items falling from significant heights can cause significant injuries and even death. Our San Francisco injury attorney is here to help those injured by falling items recover needed compensation and begin the healing process. Note: This discussion will focus on events outside the employment context, although our firm can help with third-party suits and other recoveries beyond workers’ compensation in the on-the-job arena.

Recent Headlines Demonstrate the Threat of Falling Debris and Other Objects
If objects had minds, it would seem a building scheduled for demolition in San Francisco’s Financial District decided to get a head start on the process. ABC 7 News spoke with a fire dispatcher who confirmed that a call came in at 8:20 A.M. on Monday October 13 reporting the partial collapse of a building near the intersection of Pine and Montgomery Streets. Luckily, no one appears to have been injured as debris fell, creating a pile that pushed into the street. While the Fire Department had left the scene by the time of ABC’s report three hours later, there will be an investigation conducted by the Department of Building Inspection.

A quick glance at recent headlines shows this is hardly an isolated incident and that falling debris often results in injuries. On October 1, a metal bracket fell from a building in New York City’s Times Square sending two pedestrians to the hospital according to NY1. Headlines on the same day as the San Francisco incident, a woman in Oklahoma was injured when concrete from an overpass fell onto her vehicle. She incurred serious injuries impacting her head, arm, and torso and the region’s News on 6 reported she remained hospitalized the following day but was upgraded to fair condition.

The Law, Possible Claims, Potential Recovery, and a Plaintiffs’ Lawyer
There are a range of potential legal claims that can arise from a falling debris incident along with a range of possible defendants. A premises liability claim may apply if the incident was the result of a property owner’s negligence, such as a poorly secured piece of lumber falling from an outdoor store display during a wind gust. A product liability claim could apply if the debris fell because of a defective item, such as a piece of scaffolding that collapsed sending objects falling to the ground. Special laws may apply in some cases, such as rules about securing loads in a case involving debris falling off of a truck.

As with any injury case, calling an attorney promptly is essential. Evidence disappears fast and your attorney will want to inspect the incident site while it is in a similar condition to the state at the time of the accident. It is also helpful if you or someone else can take good pictures of the accident scene in the moments just after the incident. Your lawyer will also want to talk to witnesses while memories are fresh. Additionally, there are always time limits in the law and these may be particularly stringent if your claim is against a government entity (ex. a claim against a highway department for negligent construction leading to debris falling on your vehicle and causing injury).

If falling debris or other falling objects in Northern California left you or a loved one injured, call our falling debris injury lawyer in San Francisco, Santa Rosa, or Oakland. Attorney Brod has the breadth of experience that is crucial to evaluating a complex incident, bringing all appropriate claims against all appropriate defendants, and, ultimately, helping our firm’s clients recover all the money the law allows.

See Related Blog Posts:
Theatre Collapses Injures Dozens, Investigator Say No Criminal Liability
Witnesses Call Into Question the Safety of the Bay Bridge, 4 Months After Re-Opening

(Image by Bradley Gordon, not of any of the reported incidents)

Brazenness, Perhaps Overconfidence Were Evident in Detroit Medicare Fraud Case

October 14, 2014 by Gregory J. Brod

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Medicare fraud and brazenness seem to be pairing up with troubling frequency these days, as individuals determined to illegally enrich themselves at the taxpayers’ expense are coming up with increasingly blatant schemes. We learn about these fraudulent endeavors when the fraudsters are caught stealing, but unfortunately, as we have discussed in our blogs, many of the schemes have gone unpunished. But San Francisco qui tam lawsuit attorney Gregory J. Brod would point to one scheme in particular in Detroit that was recently uncovered and prosecuted for being one of the more brazen cases of Medicare fraud.

According to the FBI’s Detroit Division, a case was unsealed in U.S. District Court in the Eastern District of Michigan on October 8 to which Usman Butt pleaded guilty for his role in a $22 million conspiracy to defraud Medicare. The plea of Butt, a former owner and manager of two metro Detroit home health care agencies, followed that of his former business partner and co-conspirator, Muhammad Aamir, who had already pleaded guilty on August 20.

In the plea documents, Butt admitted to conspiring with others to bill Medicare for home health services that were not actually provided, nor were medically necessary and that were procured through the payment of illegal kickbacks. Through the scheme, which ran from 2008 through January 2013, false claims were submitted to Medicare that resulted in the program paying out approximately $12,607,262. Butt specifically admitted that the nursing care services provided by his companies, Prestige Home Health Services in Troy, Mich., and Royal Home Health Care Inc, of Clawson and Troy, Mich., were neither medically necessary nor even needed.

What made the Butt scheme particularly brazen was the fact that he also admitted to having helped a co-conspirator to file a false corporate tax return for Prestige in which the illegal kickbacks were deducted as “business expenses.” That ploy saved Prestige at least $321,485 in taxes that were due for 2009.

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Sentencing for Butt has been scheduled for Jan. 13, 2015. His case, investigated by the FBI, Health and Human Services Office of the Inspector General and IRS, represents another success story for the federal government’s Medicare Strike Force, which, since its inception in 2007, has charged nearly 2,000 defendants with more than $6 billion in collective fraud against Medicare.

While the case against Butt and other successful cases that the Medicare Fraud Strike Force has pursued have been encouraging developments in the fight against Medicare fraud, conservative estimates of the value of schemes that may slip by the government’s watch every year have been pegged at $100 billion per year, and more generous estimates place the total much higher at upward of $300 billion every year.

Continue reading "Brazenness, Perhaps Overconfidence Were Evident in Detroit Medicare Fraud Case " »

Carbon Monoxide Poisoning in Motor Vehicles: Details, Dangers, and Liability

October 14, 2014 by Gregory J. Brod

Even if the harm catches you off-guard, the basis of most threats can be seen - the car doing 60mph in a 25mph zone, the slip-potential of water pooling atop a flight of stairs, the driver focused on his phone instead of the road. Carbon monoxide, however, is neither seen nor smelled. It is a dangerous, even deadly, threat. In this entry, our San Francisco poisoning attorney focuses on automobiles and carbon monoxide, a dangerous mix.

Brief Refresher on CO Poisoning poison.png

The Centers for Disease Control explains that carbon monoxide ("CO") is an odorless, colorless gas that forms in combustion fumes. People and animals are put at risk when CO builds up in an enclosed or semi-enclosed space. As the gas builds in the air, it also begins to replace oxygen in the blood and deprives bodily tissues of the same. Early symptoms of exposure include headache, nausea/vomiting, weakness, chest pain, and confusion. Since these symptoms are vague and mimic many other conditions, diagnosing CO poisoning is tough.

Continued exposure can lead to a loss of consciousness and even death. Notably, the patient rarely notices their own irrational thoughts patters and a third-party may be the one who sees something amiss. If someone is acting strangely out-of-character, ask questions and consider bringing them to a hospital for evaluation; you could save their life. If you notice some of the initial symptoms yourself, especially if you are working near cars or and older furnace, seek medical help immediately

CO and Motor Vehicles
A piece from Iowa State University's Department of Agricultural and Biosystems Engineering ("ABE") points to the specific danger of CO and automobiles. Introducing the
matter, ABE explains:

"The lethal consequences of CO in engine exhaust is tragically illustrated by the hundreds of persons who die each year from carbon monoxide poisoning caused by a running vehicle inside a closed garage Others die or become ill in homes with attached garages, while stranded in their car, or while driving or riding in a vehicle with a defective exhaust system."

There are numerous ways in which vehicles can lead to CO poisoning. Defective exhaust (including a blocked tailpipe) or emissions systems and even a poorly tuned engine can lead to CO buildup during normal vehicle operation. Likewise, operating or driving an automobile with the trunk/tailgate open or with holes in the vehicle's body can also cause CO buildup. A more commonly known danger is allowing a car to warmup or otherwise run in a garage or enclosed area, which can threaten people in the same or an attached structure.

Notably, most newer cars are equipped with catalytic converters that add additional oxygen to deadly CO gas to turn it into the more common (and non-poisonous!) CO2. However, exhaust may leak out before the catalytic converter is able to do its job. The converter is also ineffective during cold starts or when oxygen is limited.

In addition to the general dangers of CO, there are added risks when CO and cars combine. When the blood concentration of CO grows and CO intoxication occurs, the poison begins to interfere with driving skills. CO intoxication causes confusion in addition to slow and increasingly irrational though patterns. Patients often do not see this themselves and taken together this can lead to dangerous, deadly, multi-car pile-ups.

How Our Northern California Injury Lawyer Can Help
If you or someone you love experienced CO poisoning, particularly if it caused permanent impairment or death, an experienced lawyer like Attorney Brod can help. Lawyers are top-notch investigators and we can help figure out when and how the patient was exposed. Depending on those answers, we might be able to bring suit such as a defective products claim against the car maker who used a risky exhaust system set-up, a repairperson who did shoddy work, or even a home builder who did not provide proper ventilation for the garage. Likewise, if you were injured in a car crash and the at-fault driver is blaming it on CO intoxication, we may be able to go after the source of the driver's intoxication.

See Related Blog Posts:
California Lawyer on the Dangers of Carbon Monoxide Poisoning

California Toxic Torts Law and the Many Dangers (and Uses) of Chlorine

(Image by resignent)

Best Price Fraud – A Form of Manufacturer-Committed Health Care Fraud

October 13, 2014 by Gregory J. Brod

Best Price Fraud, like many other types of health care fraud, is at once complex and quite simple. At heart, Best Price Fraud is about drug manufacturers lying to the government in order to increase profits. Likewise, the claims filed against the perpetrators are about the truth. Whistleblowers come to our Northern California health care fraud law firm because they believe in uncovering the truth. In doing so, they can help return money to programs that desperately need every dollar.

The Medicaid Drug Reimbursement Process & The “Best Price”
Understanding best price fraud on a more detailed level requires understanding a bit about how Medicaid deals with pharmaceuticals. If a pharmaceutical company wants to supply drugs to health$.jpg Medicaid patients, they are required to pay a rebate to the states. Manufacturers submit a Quarterly Report that includes data on each individual drug including the Average Manufacturer Price (“AMP”) and the “Best Price.” The Best Price is the lowest price at which the manufacturer sells the drug to any outpatient purchaser nationwide. It takes into account volume discounts, cash discounts, rebates, and any free goods offered with that drug. Best Price excludes a few explicitly laid forth prices such as the amount charged to the Veterans Administration and the Indian Health Service. Using the AMP and Best Price information, the Centers for Medicaid and Medicare Service will tell the manufacturer what rebate the state is owed.

In a notice titled “OIG Compliance Program Guidance for Pharmaceutical Manufacturers,” the Office of the Inspector General for the Department of Health and Human Services warns: “Given the importance of the Medicaid Rebate Program, as well as other programs that rely on Medicaid Rebate Program benchmarks…manufacturers should pay particular attention to ensuring that they are calculating Average Manufacturer Price and Best Price accurately and that they are paying appropriate rebate amounts for their drugs.”

Best Price Fraud: Explanation and Example
Best Price Fraud occurs when the manufacturer provides false data as part of the foregoing process. As is noted in the Guidance, these frauds can give rise to liability under the False Claims Act. In addition to providing data that is simply inaccurate, Best Price Fraud can arise where the manufacturer pays kickbacks or uses other arrangements that provide disguised discounts not taken into account when the manufacturer calculates the figures.

The largest settlement in the health care fraud arena was GlaxoSmithKline’s (“GSK”) 2012 agreement to pay $3 billion to resolve various claims. Among the allegations resolved by that settlement was the claim that, from 1994 to 2003, GSK provided certain discounts to drug purchasers for products purchased in “bundles.” Properly accounted for, these discounts would be allocated proportionally among all the bundled products. However, these were not included in GSK’s Best Price calculations. This resulted in GSK underpaying Medicaid rebates and overcharging other public entities. $300 million of the settlement was specifically tied to resolving these allegations.

Partnering With Private Individuals to Fight Fraud
Best Price Fraud, like other forms of health care fraud, steals from government programs and ultimately from the American people. If you have information that a drug manufacturer is not complying with Medicaid rules and is providing inaccurate Best Price information, please call. The law protects whistleblowers from retaliation and, when a case results in money being returned to the government, offers rewards for their time and effort.

See Related Blog Posts:
Focusing on a Form of Pharmaceutical Fraud: Doctor Indicted for Selling Narcotic Prescriptions
Medicare Advantage and Risk-Adjustment Fraud

Furnishing Alcohol to Minors: California’s Limited Social Host Law Protects Victims of Underage DUIs

October 10, 2014 by Gregory J. Brod

The problem of underage drinking is not new and, sadly, neither is the problem of underage drunk drivers causing serious accidents. However, it seems like only recently we have begun to ask the logical next question: How did they get the alcohol? As an Oakland DUI injury law firm, we believe this is a critical question. We also believe in holding adults accountable for accidents that occur because they were providing alcohol to minors.

Fremont Woman Arrested for Providing Alcohol to Teen Involved in Fatal DUI Crash
On Tuesday, as reported by ABC News, 42 year-old Tabassum Yousuf was arrested in Fremont on suspicion of felony involuntary manslaughter and a misdemeanor charge of contributing to the delinquency of a beercar.jpgminor. The charges relate to a fatal car accident in Fremont that claimed the life of a 17 year-old boy last year.

According to police, evidence suggests that Yousuf bought and furnished alcohol for a large party held at her home during the overnight hours of October 26 into October 27, 2013. Large amounts of alcohol were consumed at the event. Shortly after 1 A.M. on the 27th, three seventeen year olds who had attended the party crashed into a tree located near the intersection of Durham Road and Topaz Road. The front-seat passenger died at the scene.

Police arrested the 17 year-old driver. He was eventually convicted of felony drunk driving and vehicular manslaughter. As authorities investigated further, they concluded Yousuf also bore responsibility for the crash because she had supplied alcohol at the party the teens had attended.

California Law on Providing Alcohol to Minors: Criminal & Civil “Social Host” Laws
California takes providing alcohol to minors very seriously. Section 25658 of the Business & Corporations Code makes providing alcohol to someone under age 21 a misdemeanor. If the alcohol is consumed by someone under age 21 who then causes great bodily injury or kills him/herself or anyone else, the provider is guilty of an additional misdemeanor.

winespill.pngIn addition to the criminal penalties, the adult also risks civil liability. Section 1714 of the Civil Code provides that people are responsible for their own acts as well as injuries caused to another due to his failure to use ordinary care. The Code specifically states that furnishing alcohol is not the proximate cause of any injury that stems from the resulting intoxication, instead the consumption of the alcohol is the cause of those injuries. This eliminates the “social host” doctrine.

However, Section (d) specifically makes an adult, including a parent/guardian, who furnishes alcohol in his/her own residence to someone the adult knows (or should have known) is under 21, can be held liable for injuries or deaths resulting from the intoxication of the younger individual. This brings back the social host rule for these specific circumstances. The rule is further clarified by the California Civil Jury Instructions 427 which reiterates the existence and elements of such a claim.

Two Lessons: Urging Responsible Hosting, Ensuring Accountability
We urge parents considering hosting an underage drinking party to reconsider. Likewise, adults hosting general parties involving alcohol must to take care regarding who consumes the alcohol. Serving someone under age 21 opens you up to criminal and potentially civil liability. If the minor goes on to injure or kill someone, via a DUI crash or otherwise, you may be liable for substantial civil damages.

On the opposite side of the equation – If you were injured or lost a relative in a crash caused by an intoxicated individual under age 21, you may have a civil claim against both the driver and the adult who supplied the alcohol, depending on the circumstances. Importantly, a settlement or verdict is only useful if you can collect on it and the adult is more likely to have sufficient insurance and/or assets to pay your claim.

Our DUI victims’ law firm in Oakland, San Francisco, and Santa Rosa represents the injured and the grieving. We work diligently to explore all potential avenues for recovery and to ensure our clients can actually collect on any judgment or settlement amount. Call to arrange a free consultation.

See Related Blog Posts:
Why 21? Exploring the Drinking Age and Its Impact on Drunk Driving Crashes
Additional Charges Brought In Case of Teenage Drinking and Fatal DUI

(Beer Photo by Jørgen Schyberg; Wine Photo by Ryan Gageler)

Hit-and-Run Crash in Fremont Between Truck and Motorcyclist Leaves Latter Dead and Unanswered Questions

October 9, 2014 by Gregory J. Brod

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The brunt of a crash between a truck and smaller motor vehicle almost invariably falls most heavily on the latter, with the odds of survival or escaping injury for the motorist much poorer than those for the trucker. However, a collision between a truck and a motorcyclist, bicyclist or pedestrian is even more heavily stacked against the nontrucking party, with the chances for a fatal encounter for the latter greatly increased. And San Francisco motorcycle accident and trucking accident attorney Gregory J. Brod notes with sadness that a hit-and-run collision between a truck and motorcycle in Fremont on Wednesday left the motorcyclist dead and the truck driver nowhere to be found.

According to KTVU News, a 61-year-old man riding his motorcycle eastbound toward Warm Springs Boulevard on Mission Boulevard, which is a busy road that connects Interstates 880 and 680, was struck and killed by a semi-rig at about 1:15 p.m. Wednesday. Witnesses reported that the driver of the truck, which may have been towing two chrome-colored tanks, continued on without stopping after hitting the 2004 Kawasaki motorcycle.

The California Highway Patrol has identified the deceased motorcyclist but was not releasing his name until his family is notified. The CHP said that it is possible the trucker did not realize that he or she had struck the motorcycle, and that the collision occurred on a stretch of the road that is under construction, which elevated the hazardous conditions on the busy street.

The National Highway Traffic Safety Administration’s most recent statistics paint a grim picture for motorcyclists involved in crashes, including the following:

  • In 2012, 4,957 motorcyclists were killed in motor vehicle traffic crashes, which represents a 7 percent increase from the 4,630 motorcyclists who were killed in 2011.
  • In 2012, there were 93,000 motorcyclists who were injured, which is a 15 percent increase from the 81,000 who were injured in 2011.
  • In 2012, motorcyclists accounted for 15 percent of all traffic fatalities and 18 percent of all occupant (driver and passenger) fatalities.
  • While motorcycles represented only 3 percent of all registered vehicles in the United States in 2012 and accounted for only 0.07 percent of all vehicle miles traveled, on a per-vehicle-mile-traveled basis, they were 26 times more likely than passenger car occupants to die in traffic crashes and five times more likely to be injured
  • On a per-registered-vehicle basis, the fatality rate for motorcyclists was six times the rate for passenger car occupants in 2012, while the injury rates for motorcyclists and passenger car occupants were about the same.
  • In 2012, 2,624, or 52 percent, of all motorcycles involved in fatal crashes collided with another motor vehicle.

In addition, the NHTSA’s most recent statistics on trucking crashes sketch an ominous picture for motor vehicles that are unfortunate enough to be involved in a collision with a truck, including the following:

  • In 2012, 3,921 people died and another 104,000 were injured in crashes involving large trucks – those with a gross vehicle weight rating greater than 10,000 pounds – 333,000 of which were involved in traffic crashes that year.
  • The 3,921 fatalities from crashes involving large trucks in 2012 represented a 4 percent increase from the 3,781 who died the year before.
  • Of the trucking-linked fatalities in 2012, 73 percent were occupants of other vehicles, 10 percent were non-occupants, and only 18 percent were occupants of large trucks.
  • In 2012, 104,000 people were injured in crashes involving large trucks, which represents an 18 percent increase from the 88,000 who were injured in 2011.
  • Of the trucking-linked injuries in 2012, 73 percent were occupants of other vehicles, 3 percent were non-occupants, and only 24 percent were occupants of large trucks.
  • In 2012, large trucks accounted for 4 percent of all registered vehicles, 9 percent of the total vehicle miles traveled, and 8 percent of all vehicles involved in fatal crashes.

Continue reading "Hit-and-Run Crash in Fremont Between Truck and Motorcyclist Leaves Latter Dead and Unanswered Questions" »

Young Bodies, Adult Injuries: Continuing Our Look at Safety in Youth Sports

October 9, 2014 by Gregory J. Brod

On Wednesday, our Northern California youth sports law firm looked at the threat of concussions facing high school football players. Among the many studies on the topic is research discussed on WebMD finding concussions occurred more than twice as often in high school athletes in 2012 than in 2005. Researchers involved in that study suggest the trend is due to increased awareness and not an increased in danger. While we certainly agree that added awareness leads to increased reporting, we believe that there is another (substantial) factor in the youth sports injury epidemic: how young people play.

footballkid.jpgStatistics on Young Players and Injuries
Concussions are not the only danger facing young athletes today. Contra Costa Times recently examined the increase in “adult” injuries among young players. Each year, more than 46.5 million children in the United States participate in sports. Last year, 1.24 million children received emergency room treatment, a figure that translates to 3,400 young people visiting the ER each day. A whopping 90% of youth athletes report experiencing some form of sports injuries and more than half of those children say they played through an injury to avoid letting their team down.

According to pediatricians, overuse and acute injuries traditionally considered adult problems are cropping up in younger and younger athletes. One such injury is a torn anterior cruciate ligament (“ACL”). Typically seen in older teens and even professional athletes, ACL tears are being seen in children as young as 7. A study by Children’s Hospital of Philadelphia found ACL injuries in young people increased by 400% in the past 12 years.

The Changing Culture of Youth Sports
What changed? Pediatric orthopedic surgeon Dr. Nirav Pandya notes many of his young patients devote 20 to 30 hours to sports each week. Kids as young as age 5 are joining leagues and organized sports are quickly replacing free play time. The culture of youth sports is also changing. Doug Garner, the NFL’s coordinator of mental training services, reports a shift from laid-back play to treating children as miniature versions of professional athletes. This includes early specialization, with kids playing the same sport all year which increases the risk of repetitive injuries and overall burnout. Dr. Padya’s message for parents and coaches -- Staying injury-free is more important to future athletic achievement than having 10 year kids spend 30 hours a week in practice.

The type of traumatic injuries being seen in young players are the same injuries that bring professional sports careers to a screeching halt and impede the active lifestyles of countless adults. When these injuries hit children and growing teens, there are added worries. Bone fractures and ligament tears can cause damage to the growth plates of still maturing bodies, possibly causing deformities or limiting bone growth.

Protecting Young Players on the Field and in the Courtroom
Sports should be health-positive, not a health threat. Injuries happen and not every sports injury should result in legal action. However, youth sports organizations and coaches must be held accountable for decisions that put child and teen athletes at undue risk. We should not accept adults ignoring known risks, pushing players too hard, or encouraging unnecessarily hazardous playing or training techniques. When such behaviors leave a young person seriously injured, especially when the injury may lead to lifelong struggles, litigation can be appropriate. Call our sports injury law office in Oakland, San Francisco, or Santa Rosa to discuss how we can help your injured child.

See Related Blog Posts:
Protecting California’s High School Football Players and Other Young Athletes
Playground Injuries: When It Is More than an Everyday Childhood Stumble

Protecting California’s High School Football Players and Other Young Athletes

October 8, 2014 by Gregory J. Brod

For many, Fall is all about high school football. San Francisco sports injury lawyer Greg Brod and the team at the Brod Law Firm support our local high school teams as fans and as advocates for player safety. The safety of young athletes is getting long overdue attention across the country. Here in California, a new state law set to take effect in January that we hope will help prevent concussions and other brain injuries in high school football. When a young player in Northern California suffers serious injury because of a negligent decision by an individual or sports organization, our firm can serve as an advocate for the athlete and help win compensation to address both current and future needs.

The Threat of Concussions on the Football Field brain.jpg
Before we get into the Bill, we want to take a moment to remember why change is critically needed. On Tuesday, CNN Parents reported that three high school football player in three different states died in the last week alone. Our hearts go out to the families and the communities in mourning.

Further supporting the need for some sort of change, last year PBS reported that high school football players suffer concussions nearly twice as often as college football players. While most people recover from concussions, the same study found that 10 to 20% have symptoms that last anywhere from a few weeks to a multiple years. Researchers are looking into a possible link between repetitive head trauma and long-term degenerative brain conditions including Alzheimer’s.

New California Law Seeks to Protect Middle and High School Football Players
Assembly Bill 2127, one effort to keep our young players safe, was approved by Governor Brown in July and is set to take effect on January 1, 2015. Public, private, and charter schools will be impacted by the Bill, which adds one section to the Education Code and amends one existing section. The text of the Bill is available on the California Legislative Information website and provides insight into the two elements and their goals:

  • Adding Section 35179.5 – This section deals with football practice at both middle and high schools in the state. Schools may not have more than two full-contact practices per week during the preseason and regular season and may not have full-contact practices during the off-season. The full-contact portion of any practice is limited to 90 minutes.
  • Amending Section 49475 – Under the new rule, if a concussion or head injury is suspected, the athlete cannot return to the athletic activity until a licensed health care provider with training in concussion management has evaluated the athlete and provided a written clearance. If the health care provider concludes the player has had a head injury or sustained a concussion, the player must also take part in a supervised return-to-play program lasting at least 7 days. Additionally, each year before beginning practices or competitive play an athlete or the athlete’s parent/guardian must sign and return an information sheet on head injuries and concussions. Notably, this portion is not expressly limited to football, although it does not apply to physical education classes.

Our Commitment to Young Athletes
We believe that sports can be incredibly beneficial for young people. They learn discipline and teamwork. Physical activity is also a critical component of the battle against childhood obesity. However, responsible adults must take care to keep our young players safe. California’s new law is a start, but only start.

If your child suffered a head injury while playing football or another sport and you believe a governing entity or individual put him/her at risk, call our Northern California youth sports injury law firm. Head injuries can have life-long consequences. A civil suit can help ensure your child has the financial resources to deal with the impact of the injury and can also help inspire meaningful change.

See Related Blog Posts:
Concussions and Other Head Injuries in Youth Soccer
California Concussion Law Takes Effect January 2012, Increasing School Liability

Pharmacies Engaging in Health Care Fraud

October 6, 2014 by Gregory J. Brod

Americans spend nearly $1,000 per person on pharmaceuticals each year. According to PBS, this is nearly 40% more than is spent per person in Canada, the next highest spender. To explain the discrepancy, PBS notes that Americans take more drugs than any other county and the high costs of medications, especially new drugs that often debut in the U.S. Notably, many other nations essentially regulate medication costs. We would add another factor contributing to high pharmaceutical costs in the U.S.– health care fraud. In this post, our California pharmaceutical fraud law firm looks at two forms of alleged Medicare/Medicaid fraud. Along with other cases of drugstore health care fraud, these schemes create costs and endanger the health of the American consumer.

pill$.jpgWalgreens 2008: Switching Between Pill Types For Profit
In 2008, Walgreen Co. paid $35 million to settle allegations of prescription drug fraud claims. As detailed in a Department of Justice (“DOJ”) press release, the settlement addressed reimbursement requests for three specific prescription drugs that Walgreens filed with the Medicaid systems in 42 states and Puerto Rico. It was similar to previous settlements with CVS Caremark and Omnicare. The Walgreens case was initiated by a pharmacist who was slated to receive nearly $5 million via the federal and state whistleblower statutes. In settling the claims, Walgreens did not admit any liability.

According to the government, Walgreens switched Medicaid patients from one version of the subject medications to another (i.e. from tablets to capsules), moving from a cheaper form to a more expensive version. The alleged acts occurred between June 2001 and 2005 and the charges stated that there was no medical reason for the switch, instead the sole goal was to increase the reimbursement rate and therefore increase profits. Even though tablets and capsules work the same way in the body, they are not considered the same and pharmacists cannot move a patient from one to the other without a doctor’s order.

Walgreens 2012: Illegally Enticing New Customers
This was not the chain’s only brush with health care fraud. In April 2012, the DOJ announced that Walgreens had paid $7.9 million to the U.S. and certain states to settle a different False Claims Act case. These claims began as two separate whistleblower lawsuits, one brought by an independent pharmacist and the other by a pharmacy technician who had previously worked for Walgreens, under the Act’s qui tam provisions. The settlement includes a denial of liability.

According to the suit, Walgreens promoted a program giving people $25 gift cards for transferring a prescription to Walgreens from another pharmacy. Although the ads usually noted that the offer did not apply to participants in Medicare, Medicaid, Tricare, and other government programs, employees frequently ignored this limitation and gave the gift cards to people covered by those programs. Such acts violate laws that prohibit pharmacies from influencing decision-making and luring government program participants to a pharmacy with an inducement like a gift card. The law is intended to ensure patients choose a pharmacist based on legitimate medical needs (ex. continuity). Per Daniel R. Levinson, the Inspector General for the Department of Health and Human Services, “This settlement makes clear that corporations seeking increased profits over their patients' needs will pay a substantial price.”

A Partnership Against Pharmacy Fraud
Health care fraud threatens our health and our wallets. Pharmacies should be trusted partners in care. While they need to make money, they must not do so at the expense of public health. One way pharmacy fraud endangers public health is by depleting already limited funds available for the care of those who rely on government health care programs.

Fighting pharmacy fraud, like fighting most forms of health care fraud, requires private whistleblowers willing to step up and speak up when they see a fraudulent scheme. As a San Francisco pharmacy fraud lawyer, Attorney Greg Brod can assist these brave individuals helping to end the fraud while also protecting the interests of the whistleblower and ensuring s/he receives appropriate compensation for the time and effort expended.

See Related Blog Posts:
CVS Insurance Scandal
Focusing on a Form of Pharmaceutical Fraud: Doctor Indicted for Selling Narcotic Prescriptions

(Image by Bill David Brooks)