San Francisco Injury Lawyer Blog

Your trip to the grocery could end up costing you more than the total printed on your receipt. The Environmental Working Group has just released lab tests showing the synthetic estrogen BPA is found in high levels on cash register receipts. Bisphenol A (BPA) has been linked to cancer, abnormal reproductive system development, obesity, diabetes, cardiovascular disorders and asthma. Health professionals and scientists have been trying to get BPAs banned from food packaging to prevent BPAs from leaching into infant formulas, canned foods, and beverages. It turns out that major retailers are using BPA contaminated paper in their receipts including: McDonald’s, CVS, KFC, Whole Foods, Walmart, Safeway, and the US Postal Service. However, many receipts contain little or no BPAs such as those at Target, Starbucks, and Bank of America ATMs. What is scary is about this new discovery is that the paper used in the receipts that contain BPA look no different than papers that do not.

Research has demonstrated that this BPA leaches out of polycarbonate plastics, out of the resins used to line most food cans and out of dental sealants. When we hear about polycarbonate bottles and BPA, the amount of BPA leaching out is so minimal that it can only be measured in nanograms. Now, when we hear about average cash register receipt containing BPA, the amount of BPA leaching out is so great that it is measured in milligrams! And the BPA that is leaching out from receipts is free BPA, free meaning the individual molecules are loose and ready for uptake. However there is no research yet that shows exactly how much BPA can rub off onto fingers from receipt papers, if it penetrates through the skin — and if it does, how much gets into the circulation and if it can reach organs throughout the body. Here at the Brod Law firm we believe that the government should mandate labeling of any and all products that contain BPA, including receipts—since they are the biggest threat—at the point of purchase. That way, at least consumers would know the risks involved regarding their purchases and, most importantly, if they should wash their hands after picking up a BPA-laced receipt.

Apropo our last blog, there is some addition information we would like to share. But before we do that, the following is a quick recap. Last week, according to AOL news, a Greyhound bus carrying 47 people on its way to Sacramento from Los Angeles crashed on a highway in California’s Central Valley on Thursday, killing six and injuring many others. The California Highway Patrol Officer at the scene said the bus driver swerved to try and avoid another crash involving an overturned SUV and slammed into a concrete center divider and then struck another vehicle shortly after 2am. The bus then went down an embankment, hit a eucalyptus tree and came to rest on a freeway off-ramp. 47 people were on board, six people died, and the driver was among the dead. This story brings to light two issues: SUV safety and bus safety.

First, this accident happened because the driver of the bus swerved to avoid an overturned SUV and could have been avoided if the SUV had not rolled over and obstructed the path of traffic, which forces the question--Why are some people are still under the impression that bigger is safer? Even though there is plenty evidence showing that SUV’s have a propensity for rollovers and instability at high speeds due their high center of gravity, plenty of people are still buying/driving them. Second, the accident resulted in serious injuries and 6 deaths, which forces the question--Can buses be made safer so that accidents such as this don’t have such catastrophic results? It turns out that the National Highway Traffic Safety Administration(NHTSA) is making it a priority to improve motor coach safety. In a meeting held in June 2010 they announced specific ways in which they will go about doing that. They will begin by addressing the root causes of motor coach crashes, such as driver fatigue, inattention, medical conditions and the oversight of unsafe carriers. Then they plan to address the root causes of fatalities and injuries in motor coaches by developing requirements for seatbelts for all seating positions to prevent ejections, strengthening the bus structure surrounding the windows to improve their crashworthiness, conducting verification rollover testing, develop performance requirements for motor coach structural integrity, leasing and testing Electronic Stability Controls to decide if they should be standard, upgrading the performance of tires used on motor coaches, and developing more stringent flammability and fire countermeasures and detection requirements. Here at the Brod Law Firm, we believe that consumers decisions about what form of travel they purchase should be tempered by their own research into the risks involved—which may, or may not, give them a better chance of staying safe than if they had not.

There is a growing concern over how the instant accessibility of information online is affecting, even threatening, the legal system. The following is a scenario that is becoming popular: Prior to a trial a prospective juror conducts a few quick Google searches of the parties involved in the trial. During the trial, evidence is presented, and the juror Googles whatever info there is regarding that evidence (even though the judge already admonished the jurors regarding this particular practice). Then, during deliberation, the juror tells another juror about what was found during the web search prior to trial and during trial. Some other jurors hear the exchange. Finally, the jury reaches its verdict, let’s say for the defense. Next, a motion is filed by the plaintiff, and the trial court sets aside the verdict, finding that one juror had introduced extrinsic evidence into deliberation that prejudiced the jury and swayed the outcome. For those of you who don’t know, extrinsic evidence includes knowledge relevant to the facts in issue not obtained through the introduction of evidence but acquired prior to trial. So, it goes without saying, that all such types of internet research by a juror prior to trial without notice to the court and counsel can lead to mistrials, which not only delays justice but furthers the cost, inconvenience and emotional stress of all parties.

The flip side of the internet’s influence over a case or trial has to do with attorneys using it to find evidence against opposing parties or information on prospective jurors. Divorce attorneys, especially, are using the internet, usually via social networking sites, to gather personal information about their client’s soon-to-be-ex and use it as leverage or as a way to cast doubt on the character of the soon-to-be ex. Also, a lawyer can check their client’s presence on the web for any information that could be used by the ex’s legal team. And when it comes to picking a jury, lawyers sometimes pay more attention to their computer screens during a voir dire than on the answers jurors are giving. Any attorney that thinks this is a good idea should consider the ethical and legal rules that may apply. Here at the Brod Law Firm we are noticing more and more how an individual's presence on the web could potentially hurt them if they become involved in a lawsuit. It is a brave new world out there, people. Proceed with caution.

Anyone who has insurance is vulnerable to insurance fraud. It does not matter what type of policy you hold, whether you have an individual plan or employer based insurance --you are not safe from insurer bad-faith practices. What is more, even people who have high paying jobs with great insurance plans don’t know they are at risk. Speaking of employer based insurance, most people don’t know about a little thing called ERISA preemption.

The Employee Retirement Income Security Act of 1974 is a federal law that was intended to protect the retirement benefits of employees against mergers, acquisitions, and other corporate activities that might otherwise have endangered such funds. Originally ERISA had nothing to with overruling state insurance regulations. It specifically approved of the use of state laws to regulate insurance practices. That was until the insurance companies went to the US Supreme Court and argued that they could lower insurance premiums on health insurance policies purchased in the workplace and, thereby, make insurance more affordable to people if the Supreme Court would agree to preempt state laws. And in the 1987 ruling written by Justice Sandra day O’Conner, in the case of Pilot Life v. Dedeaux, the court decided that a state law that does not directly regulate the business of insurance is preempted by ERISA for insured plans, essentially eliminating the legal rights --established over many years—that protect policy holders from fraudulent and bad-faith insurance practices.

Now, without federal laws making it illegal for an insurance company to defraud somebody or ensuring accountability for bad-faith practices, insured people in almost every state are having their rights taken away, because of ERISA preemption. Here at the Brod Law Firm, we know that the likely hood of ERISA reform is slim, considering that the insurance companies are the strongest lobby in Congress (FYI: ERISA is also our roadblock to health care reform). But you can help lobby Congress by calling and voicing your concerns to your local Congressional representative and your state’s U.S. Senators. If you feel that you are the victim of bad-faith practices and have questions about the state law and how it will (or will not) protect you, please contact us.

What is “Bad Faith”? Bad Faith refers to a claim an insured person has against an insurance company that won’t honor a policy or pay a legitimate claim. At this point in time, it should be no surprise that some insurance companies delay payments in order to keep your money. Some legal consultants are saying that, because of the current recession, insurers are using delay tactics in order to make their bottom lines look better than they actually are to please their stockholders. And, as we saw with the government-sponsored financial bailouts of corporations such as Citicorp and AIG, we know the bottom line is sometimes an illusion that eventually implodes. On top of that, the insurance industry is not federally regulated, and some bad faith cases have found in favor of the insurer, stating that it is not required to disregard the interests of its shareholders and other policyholders when evaluating claim and that insurers need not put insured ‘s interests ahead of its own. For example,the judgment in Austero v. National Cas. Co of Detroit, Mich.1978 states: “An insurer is not required to pay every claim presented to it. Besides the duty (of good faith, which is the opposite of bad faith) to deal fairly with the insured, the insurer also has a duty to its other policyholders and to the stock holders…not to dissipate its reserves through the payment of meritless claims.”

Contrary to that view, other cases have had the opposite judgment upheld, suggesting the insurer must place its insured’s interests above its own or its stockholders’ interests in maximizing profits, as in McCormick v. Sentinel Life Ins. Co. 1984 that found: “The duty (of good faith) does require an insurer to place the interests of its insured above its own or its stockholders’… We accordingly reject (the view that)…there is an equivalent duty…owed to an insurer’s stockholders which may be balanced against the duty owed to its insured.” Most people believe the latter when they buy insurance and feel overwhelmed and powerless when insurers don’t want to pay. And even though each state has their own insurance departments that enforce provisions of their state’s insurance regulations, it can still be difficult to recover money for a cheated policyholder. Because bad faith cases are complex and because most policyholders feel powerless going against insurance companies, most victims of bad faith find it useful to hire an experienced insurance attorney to fight for them.

Here at the Brod Law Firm we wonder what the future may hold for policyholders, considering the current political and economic climate and the instability of the stock market. Now, more than ever, large insurance companies, like any other large company, will fixate on the bottom line of making profits and providing returns to their stockholders. The more claims a company pays, the weaker its bottom line will appear. To avoid all that, insurance companies may withhold or refuse payment or use delay tactics to hang onto your claim payment as long as possible. Despite all of this, we have the experience and skills needed to fight and win any case involving insurance bad faith.

Lawsuits are mounting on behalf of the environment and communities around the gulf coast. One Lawsuit has been filed by the Sierra Club and Gulf Restoration Network against the U. S. Interior Department and Minerals Management Service (MMS) over permits. According to the suit, the agency gave BP and other oil companies illegal waivers. The suit states, “Had MMS not waived the regulatory requirements, had BP done a proper Blowout Scenario and Worst Case Oil Spill Response analysis, theses critical planning flaws may have been avoided.” And in other related news, it turns out that BP cut corners on safety in order to save money. According to the Wall Street Journal, as of 2003, U.S. regulators decided that remote-controlled safeguards, known as acoustical valves, needed more study; and a report commissioned by the MMS said “acoustic systems are not recommended because they tend to very costly.”

Needless to say, the spill is destroying wetlands and delicate ecosystems around the gulf and poisoning life in the ocean. And the spill poses long term health concerns for the safety of communities around the gulf. The toxins can persist for years in the food chain, as oil contains traces of heavy metal such as mercury, arsenic and lead, all of which raise the risk of cancer and neurological problems. Several restaurants from Louisiana and Florida have decided to take proactive steps toward recovery by filing a class action lawsuit against BP, whom they see as the responsible party, according to the Oil Pollution Act. The class action, dated, May 18, was filed on behalf of several plaintiffs who are restaurant owners and others in the seafood service industry who have or will suffer lost profits as a result of the spill. The action states that due to the dangerous environmental contamination as a result of the oil leak, “fishing, shrimping, oystering and other commercial activities have been suspended and will likely continue to be legally and/or effectively reduced,” thereby causing a loss of revenue and earning capacity for the industry.

Here at the Brod Law Firm, we believe unchecked development over the past century has put us in this devastating situation. Up until now, coastal erosion, land loss and vulnerability to hurricanes and flooding have been the end result of wreckless pillaging of the earth and sea for oil. But now, as the oil continues to gush--at a possible rate of 1million gallons a day--we wonder how long before the spill and/or byproducts of the it will show up other places around the globe, or perhaps, here in San Francisco, and ultimately place all of us in peril.

Federal regulations require that each resident of a nursing home receive the necessary care and services to attain or maintain physical and mental health. Residents who are unable to independently carry out daily activities, such as grooming and eating, are entitled to receive the highest level of services needed to maintain good nutrition and personal hygiene. Also, it is required that nursing home facilities provide each resident with a nourishing, well-balanced diet that meets the special dietary needs of each resident. Therefore, nursing homes must employ qualified dietitians and sufficient support staff and provide assistive devices and special eating equipment for residents who need them. Failure of a nursing home facility to follow dietary regulations can result in serious injuries of residents, due to dehydration and malnutrition—both of which are preventable.

Since patients are often dependent on staff members to provide them with water and food, they are especially vulnerable to dehydration and malnutrition. Malnutrition can lead to confusion, muscles weakness, bacterial and viral infections and even death. To ensure the overall health of residents is maintained, a nursing home must also maintain medically trained staff. Federal nursing home regulations state that a facility must have 24 hour licensed nursing services and a registered professional nurse for at least 8 consecutive hours every day (under some circumstances there can be waivers of these requirements as long as it does not endanger the health or safety of the residents). When nursing homes fail to maintain adequate levels of staffing, residents are sometimes neglected or abused by overworked, stressed-out staff members.

Here at the Brod Law Firm, we are sometimes asked why nursing home abuse occurs. The following are typical reasons. Low wages and large numbers of residents assigned to each staff member lead to high turnover rates, which leads to mismanaged care. It is often the case that knowledge of the specific needs of residents is lost with high turnover rates, as there is little time for each new trainee to get to know their residents. As result, new trainees feel overworked and unable to meet the needs of residents, then stay a short time and quit. And the cycle goes on and on. Sadly, this happens because most of the nursing home industry is for-profit. As such, these corporations, in order to increase their net profits, try to keep their staffing costs low and hire fewer staff members than is required. So, when staff members place food in front of residents who can’t feed themselves and then don’t bother to assist them, it is essentially the same as starving them.

Growing old in America is not what it was, let’s say, 100 years ago. It used to be the case that age was venerated in society. Today, however, there is a negative perception associated with aging that is fostered by our culture. For the most part, the experience of the elderly is discounted by the media, or it is not represented at all--very definitely, youth and prestige have gained superiority over experience. Age has diminished as a distinguishing element among the elderly as it pertains to their worth. Without argument, the message in society today is this: to be worthwhile, you must be young. Consequently, as the negative image associated with aging is continually perpetuated throughout society, it leaves the elderly with a sense that they are worthless. Sadly for some elderly, the feeling of worthlessness is compounded when they are placed in a nursing home, especially if it is not a well functioning one. Without proper care at nursing home, the elderly commonly suffer from what we consider “nursing home abuse.”

Medicare and Medicaid have had a large impact on the use of nursing homes and the changes in patterns of financing have encouraged the construction of nursing homes. Despite Medicare and Medicaid funding and laws created to protect the elderly, there are few safeguards to ensure that a standard of patient care is maintained. Countless nursing home studies have found that proper staffing is one of the main factors to a well functioning nursing home. Investigators usually find that understaffing leads to verbal abuse and neglect. When nursing homes cut staff, pay lower wages or let caregiver levels slip below a state mandated minimum, the residents suffer. State inspectors continually undercover a litany of violations, such as neglecting bedsores and giving patients the wrong drugs. There is an implicit good faith agreement between staff and residents that they will receive proper care. Yet some nursing homes house, as part of their business plan, a high percentage medically fragile patients in order to receive higher reimbursements--which is dangerous when combined lower staffing rates.

A common injury due to understaffed nursing homes is the development of pressure sores--a telltale sign of neglect. Some patients, especially diabetics or those with high blood pressure, can develop pressure sores on ankles and tailbone. Sores can become so deep to the point that bone becomes exposed and then becomes severely infected. When a bed sore develops, nursing home staff must be quick to identify the wound and implement the use of medical equipment, such as pressure relieving mattresses and heel protectors, to prevent the wounds from worsening. When bed sore are not treated in their initial stage, they progress and become difficult and more costly to treat. A stage 3 or 4 bed sore typically requires aggressive medical treatment. In some cases, though, by the time significant medical treatment his utilized, many patients are already suffering from serious complications. In the most extreme cases, gangrene can set in and a patient has to have their leg amputated. And the worst cases of all are those that result in the death of a patient.

All kinds of legal issues are in the headlines and available to read about on internet these days. Facebook has been facing legal problems regarding their privacy settings…Yelp has had to face a class action over their advertising and sales tactics…Google faces a class action by artists, authors, and photographers, and illustrators seeking to be paid for what they create…Toyota faces class action suits regarding the recent recall and the billions lost in the value of owners’ vehicles…TLC Lasik Surgery Centers faces a class action suit accusing them of operating on patients with certain pre-existing conditions, which made them unsuitable for surgery…Denture Creams, such as Fixodent and Poligrip, have faced class action suits due to serious life threatening side effects…and, here in San Francisco, a shady landlord is being sued by City Attorney Dennis Herrera for violating building and health codes.

Here at the Brod Law Firm we are committed to helping the victims. Our Firm’s philosophy is based on one basic principal: anyone who comes to us with a personal injury issue should be treated equally and with dignity and fairness. We find it remarkable, the lawsuits that are in the daily news, from class action cases to small personal injury cases. The potential for personal injury suits exists, always. No one can foresee if or when they will fall victim to an injury. If you think you have personal injury case, don’t hesitate to call us at (415)-397-1130 for a free consultation.

According to the Associated Press, a total of 89 class action lawsuits have been filed against Toyota nationwide as of Monday, which could result in 3billion in payouts (if each individual receives around $500). Speaking of Class Action Lawsuits, have you ever received a notice in the mail from the courts that you are a member of a class action lawsuit and wondered what the heck it means? Then, not knowing what was the best thing to do or what you really could gain or lose from taking action, thrown the notice in the garbage? Here at the Brod Law Firm, we believe in the class action suit, as they give the everyday, hardworking citizens a chance to fight large corporations and private entities. So, with that said, we would like to give a brief tutorial about class actions for our readers, for the next time they might receive notice from the courts or have a potential class action claim of their own.
Let’s say you buy a car with faulty brakes and contact the company who makes the car, asking them what they will do to fix the problem. Then they delay or avoid taking responsibility for the issue, leaving you frustrated enough to hire an attorney. At that point your attorney will do some research and file a lawsuit on your behalf, and any other parties involved, and the company is put on notice. Then your attorney takes some depostions and asks the court to certify the case as a class action, meaning all people in the same circumstance get redress. Next, the court directs that notice be given to all parties having a similar claim during a particular time period. Those parties are then to be notified (usually by the defendants’ attorney) so that they may be informed and have input into the case. At that time, all parties, including the persons who bring the claim, are treated equally.
So basically, what a class action does is it allows cases that have merit to be filed that would otherwise be too expensive to litigate had they been filed individually. In the course of a class action case, several notices are mailed to class members, giving them a chance to “opt-out”. If they choose to “opt-out”, they have no further standing in the case. They can forget the matter or bring about file an action on their own behalf. If a party does not “opt-out,” they are considered to be a party to the case. From that point on you are bound by court’s decision and prohibited from taking any further action in the matter. The case could settle quickly or take years. Then, at the end, the parties will either reach an agreement, and the judge will approve the fairness and propriety of the settlement, or the case is tried and the judge renders a decision.
Anyone who feels they have a potential class action case should call the Brod Law Firm at 415-397-1130.

Last week a lawsuit filed by the Bologna family, the family whose father and two sons were fatally shot in 2008, against the city of San Francisco was thrown out. The presiding judge, Charlotte Woolard, ruled that the surviving members of the Bologna family can’t sue the city for allegedly harboring accused murderer Edwin Ramos from federal immigration authorities under federal immigration laws. In her ruling she stated: “In California and in their jurisdictions, it is well established that public entities generally are not liable for failing to protect individuals against crime.” Unlike injury cases where public entities and local jurisdiction can be held liable for injuries suffered at those locations, criminal cases do not follow the same rule. The lawsuit also claimed that that Ramos, an alleged illegal immigrant, had been previously arrested multiple times for violence and drug offenses, and the city failed to notify immigration enforcement. It is interesting to note that the Bologna family had also filed suit in federal court in 2008, and that that suit was also dismissed last year after a U.S. district judge reached the same conclusion. The crime and the criminal’s immigration status are two separate issues (issues that are too complex for the purposes of this blog), the former having no bearing on the latter.

Here at the Brod law firm, complex and tragic cases like this always leave us pondering the nature of justice, really. After all the lawsuits are filed, who is the last person to blame? Of course the person with the gun is the one responsible, but often the families of victims, such as this case shows, believe more than one person be held responsible--which is completely understandable-- in the face of the facts. It is hard to fathom the depth of grief any family feels after such a monstrous crime. Obviously, the family in this case has to come to terms with the result of the lawsuit; but, more importantly, they must come to terms with the deaths of their family members. We have seen our own clients face similar challenges during wrongful death lawsuits. Clients sometimes alienate themselves behind a lawsuit, thereby making it harder to accept and deal with their loss. It is an arduous task coming to terms with death of a loved one; it requires a courageous act of allowing the full measure of grief to penetrate one’s faculties and then by adjusting one’s life accordingly. Let’s be clear, in no way do we claim to be experts on the subject of grieving. Consequently, we always recommend victims’ families to seek out the appropriate form of grief counseling.

When the state of California took millions in transit aid to reduce its budget deficit, it severely hurt city transportation agencies—since most agencies are already strapped with their own deficit, including our MUNI. Last August, Genesis, a local group of public advocates, along with representatives from the other transportation advocate and agencies from accross the country, gathered in Chicago to speak out and call on Congress to stop the trend of transit service cuts, fare hikes, and operating budget shortages. During the press event, speakers described the dismal fiscal conditions of most of the major transit agencies around the country and offered solutions for how to get them out of the hole. They specifically referenced a report by Transportation for America titled “Stranded at the Station”. According to the report, in 2008, Americans took 10.7 billion transit trips, the highest since 1956. Advocates and community leaders say funding cuts have hurt people living in vulnerable demographics, as cuts to service make it difficult to get work, school or doctor appointments To that, the president of Genesis Reverend Scott Denman says this: “Our government says it is concerned about greenhouse gases, claims that government is by the people, for the people. Nonetheless, Federal policy currently encourages more cars on the road and less help for those who have no cars.”

Just last week, The Mercury News put out a special report on the devastating effects of service cuts on Bay Area residents who rely on public transportation. In the report a graphic depicts just how slow and expensive common regional commutes are on transit. What more will public transit agencies need to pay their bills? Here in San Francisco, Muni has raised fares twice in one fiscal year, increased parking rates and reconfigured service on its bus and train routes to deal with budget problems. If things do not change at the national level and state transit funding is not reinstated, then AC Transit and other regional transit operators will continue to be forced to cut service, raise fares, and continue to debase the transportation system— and consequently remove it as viable option for Bay Area residents. At this point, almost $22 million is still needed to close MUNI’s projected budget deficit, a dilemma that has forced the San Francisco Municipal Transportation Agency (SFMTA), the agency that oversees Muni, to ask its commercial vendors to help ease the transit agency’s debt. The department is requesting that private businesses voluntarily reduce their contracts with the agency by a minimum of 3 percent for the next 2 ½ years. Judson True, spokesman for the agency, believes this will save the agency “several million dollars.”

Another way the (SFMTA) could have raised millions in annual revenue would have been by extending parking meter hours to Sundays and nights, but that recommendation was recently rejected by the mayor. What is truly sad about this crisis is that the people who depend on public transit most are paying higher fares for less service, as some routes have had parts cut or were completely eliminated. As pointed out above, some of the most vulnerable people are now faced with walking longer distances or drive their cars to reach their destinations. MUNI may also become less safe and clean in the future. The SFMTA announced last week that it is going to lay off 24 parking and control officers and four mechanics, 10 people who clean trains and buses and a few others. Here at the Brod Law Firm, we wonder if fewer people will ride MUNI due to all the cuts to service and safety—which may lead to a complete melt down of the system, traffic congestion (that is if those left stranded even own a car)and poorer air quality.

Legislation was introduced this month that would prohibit smoking in public spaces, spaces such as farmers’ markets, outdoor seating areas of restaurants, cafes and coffee shops, and common areas of multiunit housing complexes. Smoking would also be banned from entrances, exits, and windows and vents of all buildings, while waiting in lines at ATMs, theaters, athletic events, concert venues and cab stands. Smoking would be allowed at the curb of sidewalks, streets and alleys. And if there is no curb, then smoking would be prohibited within 15 feet of entrances or exits. Also, smoking would be allowed at least 20 feet from transit shelters, boarding areas and ticket lines. Under the legislation, smokers who break the rules would face a $100 fine for the first offence and up to $500 for multiple offenses. All of these provisions have been introduced to protect residents from second hand smoke.

No one will deny that secondhand smoke is harmful . A recent report put out by the Institute of Medicine has confirmed that exposure to secondhand smoke is a significant cause of heart attacks among nonsmokers and that relatively brief exposure to second hand smoke can cause acute coronary events. And the CDC declares that, in addition to protecting people from secondhand smoke, smoke-free laws also help decrease cigarette consumption rates. If the ban passes, the tobacco industry and some businesses will probably challenge the ban, over fears of losing customers.

Here at the Brod Law Firm, we believe smoking bans are good for both smokers and non-smokers. But we wonder, if the legislation passes--and it probably will, as public support, awareness and implementation of similar bans is on the rise in cities around the globe-- how city officials will enforce the law? Will heavy fines be enough of a deterrent? We are guessing that enforcement will be driven by complaints made to the police (it is hard to imagine health officials hiring smoking patrols). More than likely, though, the pesky cigarette and smoker will be gone by the time they receive a call or before they have a chance to respond. So it seems a more formalized system of enforcement would still be needed, especially with provisions that have specific distance requirements, such as 20 feet from a bus shelter. What if a smoker is smoking 20 feet and one inch from a bus shelter or only 19 feet? How will anyone know the difference? Will the police start carrying measuring tapes? Plus, there are no guarantees that smoke will completely dissipate once it has lingered up to a distance of 20 feet. Smoke that lingers toward a bus shelter from 19 feet away will not know, under the new law, it is only allowed one more foot. And besides, everyone knows smoke does not have feelings or care if it breaks the law.

Bisphenol A (BPA) is back in the spotlight. Recent testing by Consumer Reports of canned foods found that most of the 19 name-brand foods they tested contained measurable levels of (BPA). BPA has been used for years in clear plastic bottles and is restricted in Canada and some U. S. States and municipalities because it has been linked to a wide range of health effects. It turns out BPA is also used to line the inside of canned goods so the metal does not interact with the food and deteriorate. A different report put out by researchers at the Harvard School of Public Health, back in May, found that participants who drank for a week from polycarbonate bottles, including baby bottles, showed a two-thirds increase in their urine of BPA, suggesting that drinking containers made with BPA release the chemical into the container’s contents-- enough to be measured in urine. The results also showed that the participants’ urinary BPA concentrations increased 69% after drinking from the polycarbonate bottles.
Federal guidelines currently put the daily limit of safe exposure at 50 micrograms of BPA per kilogram of body weight---based on experiments done in the 1980’s. But scientific evidence confirms that BPA at lower doses can be dangerous. Environmentcalifornia.org researchers found that BPA at low doses is associated with developmental problems, lower sperm count, breast and prostate cancers, diabetes and obesity, heart disease, Down Syndrome, behavioral changes, and miscarriage. According to a FOX News report, Dr Urvashi Rangan, the director of Technical Policy, at Consumers Union, a nonprofit publisher of Consumer reports, said,” The lack of any safety margin between the levels that cause harm in animals and those that people could potentially ingest from canned foods has been inadequately addressed by the FDA to date.” The good news is that efforts to bring about change are being made. The Consumers Union recently sent a letter to the Food and Drug Administration (FDA) Commissioner Margaret Hamburg, requesting that the agency act this year to ban the use of BPA in food and beverage-content materials. And the FDA is expected to reassess the safety of BPA and issue its findings by the end this month. Currently, bills are pending in Congress that would ban the use PBA in all food and beverage containers. Here at the Brod Law Firm we would like to see a day when the FDA imposes stricter regulations not just on BPA, but on all toxic substances. All of us born under the nuclear and DDT age have been exposed far too long to too many toxins--such as radiation, pesticides, as well as medications and vaccines--that, now, it’s time for a change.

Here at the Brod Law Firm, we are big fans of Streetfilms.org, the video segment of the Livable Streets Initiative. Streetfilms produce short on-line videos, covering a range of topics from traffic calming in Paris to Sunday Streets in Bogata, also known as Ciclovia (an event after which San Francisco modeled its Sundaystreets). There is also video posted on Streetsblog that capture street confrontations, such as that between a New York City driver with a serious case of road rage and a pedicab simply trying to make his way through the congested city streets. We find all their videos entertaining and educational, giving us insight, while also keeping us in loop, into how our city compares to other cities in terms of the different ways a city can transform its streets into safe and sustainable places, for both vehicles and non-vehicles, as well as livable, vibrant places for social interaction.
The video on traffic calming in Paris we found especially interesting and inspiring. Some examples of their traffic calming strategies are: curbs are removed so that bikes, pedistrians and cars coexist; on the wider roads, bikes share lanes with buses and taxis; some crosswalks are raised, and cobblestone streets and neckdowns are implemented to slow oncomoing or turning traffic. Street calming is a powerful tool for changing behavior and improving safety, as it forces vehicles and cyclists and pedestrians to tolerate each other. And it is not just Paris, other cities, like Copenhagen, Demark, have been implemented extensive traffic calming techniques. Some cities go further to promote non-vehicle transportation, such as Curitiba, Brazil, where, on Rua XV de Novembro (15th of November Street), all vehicle traffic is blocked and only pedestrians are allowed.
Whenever we take on a new case where a cyclist or pedestrian has been injured by a vehicle, we are reminded that these accidents only reinforce San Francisco’s need for street transformation and street calming. In order for San Francisco to maintain a competitive edge in the global economy and its status as a world class city, it must implement, through education and marketing, strategies that place people over cars and reduce the convenience of driving a car. Advertising campaigns that show the burdens of owning a car in the city often outweigh the benefits can be an effective impetus for change. And we need not look to cities overseas for inspiration; cities here in the U.S., like Portland and Cincinnati, have done an excellent job developing and implementing techniques for traffic calming. If they can do it, then San Francisco can do it. These traffic calming techniques would not only benefit pedestrians and cyclists here in our beautiful city, they would also benefit the entire planet by reducing green house gas emissions.

Between 1946 and 1964, 78 million babies were born in the U.S., creating a surge in population and a demographic bulge not seen before in the U.S. The babies of that generation, known as the baby boomer generation, grew up with rebellious and idealistic attitudes that promised to reshape society and the world. Boomers are expected to live longer than previous generations. By 2030, 20% of Americans will be over 65 and more than 35% will be over 50. Men are expected to live 22 years longer that previous generations, and women are expected to live 25 years longer. Now, as many of the first baby boomers are moving through their 60’s, one question remains: will baby boomers move through their next phase of life with health and vitality, or will they carry it out with the pain and disability associated with degenerative and chronic diseases? Evidence shows that many boomers are healthier both physically and mentally than their parents and are aging more slowly due to better eating habits and more exercise (just drive through Marin on sunny Saturday or Sunday and you will likely see many boomers on race bikes zip past you while you are sitting in traffic). But another scenario is that boomers could place a tremendous demand and burden on medicare, professional care givers, and family members if they become frail and dependent.

Whether at home or nursing home or care facility, potentially all aging persons will be exposed to some sort of abuse or neglect. Often, abuse and neglect of an elder in a nursing home or other type of care facility is profit driven. Even hospice care facilities have the same financial pressures as other elder care facilities and may sometimes neglect to offer a care rather than pay for expensive treatments related to a terminal diagnosis. Caregiver stress is also a risk factor for abuse and neglect. Family members who are thrown into the demands of daily care of an elder can feel frustration and anger. Professionally trained caregivers can experience the same intense frustration and anger as a family member who is not appropriately trained and may use physical force or neglect an elder person as a way of dealing with the situation that they feel they can’t manage.

Sometimes elders are subjected to a different kind of abuse, a malicious type of abuse known as financial abuse and it can range from scams created by salespeople, such as salespeople from drug companies, to misuse of elders funds by a care facility or family member. Financial abuse or exploitation includes taking money under false pretenses or denying an elderly person what is theirs either forced or without the older person’s knowledge. When this happens, it usually goes undiscovered until someone who cares about the older notices an unexplainable bill or funds missing from that persons account. Financial abuse is pervasive in the lives of the elderly because it can go on for long periods undetected or without ever being discovered. A person can die not knowing they were exploited for a profit or cheated by someone they trusted or loved. Here at the Brod Law Firm, we have a seen these kinds of cases first hand and have the experience and knowledge needed to help an abused elderly person or the family of an abused person.

Tomorrow San Francisco will be joining cities from 42 countries around the world to celebrate International Walk to School Day. International Walk to School Day aims to create safe routes for pedestrians and cyclists and to emphasize the importance of issues such as increasing physical activity among children, reducing traffic congestion and crime in neighborhoods, raising concern for the environment, and building connections between families and schools and the broader community. The biggest challenge facing any pedestrian safety campaign will be to re-educate a culture so centered around and dependent upon using their cars to transport them every place. The US department of Transportation reports:
• On average, 5,000 pedestrians are killed each year.
• 85,000 pedestrians are injured every year.
• In a typical 8-hour workday, 4-5 pedestrians are killed.
• 190 pedestrians are killed every two weeks.
• Everyday about 232 pedestrians are injured.
• Of pedestrians killed, 60 percent are working adults, 23 percent are elderly person aged 65 or older, and 17 percent are children up to the age of 20.
Ever since the introduction of freeways and the creation of zoning laws, Americans have been forced to center their lives around the automobile and automobile ownership. As a consequence, we have forgotten that we are all pedestrians at some point in the day. David Goldberg, an official of Transportation for America, says that “freeways literally have separated the suburbs from the city… and zoning codes separate homes from shops, shops from workplaces, workplaces from schools and schools from neighborhoods.” Here at the Brod Law Firm, we know it won’t be easy sensitizing drivers to the fact that pedestrians are legitimate road users or educating pedestrians on minimizing the risks to their safety, but campaigns such as Walk to School Day are a great way for communities, here and around the globe, to start moving toward their goals. According to Walkscore.com, San Francisco is the most walkable city in America. We may have the most walkable streets(i.e., the city is sectioned by neighborhoods that each have their own grocery stores, restaurants, movie theaters etc., and the entire city is small enough that you can walk from end to the other), but we have yet to prove if they are the most pedestrian friendly (i.e., pedestrians are often injured at dangerous intersections).

A horrible motor vehicle accident in May of 2007 changed the life of a young man, forever, requiring him to need permanent and constant medical attention. A Santa Clara jury found that two truck drivers were responsible for the accident, one of whom was talking on his cell phone at the time of the accident. The truck driver who the jury found to be 60 percent at fault, denied causing the accident, and even denied contributing to the cause of the accident. The jury awarded more than $49 million in damages.

The failure to take responsibility for an accident is perhaps one of the most overlooked reasons why the California courts are bogged down with cases. While the proponents of “tort reform”, mostly backed by insurance companies, blame California juries for large verdicts, little is heard about jury verdicts, large or otherwise, occurring in the face of a total failure to assume responsibility. Often, it is not the wrongdoer, or even their attorney, who make the decision to force an injured person to go through a trial in court to have justice served, but the defendant’s insurance company. The insurance industry spends a great deal of money to ensure that everyone is familiar with the term “frivolous lawsuits”, but rarely are cases where a “frivolous defense” is raised, brought to the public’s attention. Cases like the one in Santa Clara County should send a message to insurance companies and to those responsible for causing injuries to others. Don’t think your conduct can cause serious injury to someone and get away with it in Santa Clara County.

Apropos my last blog, there are two other projects underway in the City of San Francisco that focus on the safety and well-being of both its residents and visitors. One project, adopted by the Board of Supervisors on February 6, 2006 and appropriately called Better Streets, is a joint effort by several city agencies to improve the design of San Francisco's streets and sidewalks and was. Since that time, Better Streets has created a collection of street types which are a great improvement over our current automobile-centered street scheme and focus on the appropriate use of land (i.e. residential, commercial and industrial), the efficiency of street width and the street's role in the transportation system. The highlights and benefits that stand out most to us here at the Brod Law Firm are the ones that focus on safety, though there are many others--such as its support of neighborliness, civic interaction , community identity, and the enhancement of the quality of life for San Francisco’s residents and local businesses—and they are:
• The Design of sidewalks and medians, pedestrian safety and accessibility features, ways to mange storm water in the right-of –way, design and placement of streetscape elements such as street trees, lighting ,benches, and more
• Decreased likelihood of pedestrian/auto collisions injuries and fatalities
• Increased accessibility for all street users, create settings that make it safe and easy to be physically active and enhance the everyday quality of life for San Francisco Residents.
• Increased Space for public life, including safe useable public seating for neighborhood gathering, generous curb extensions for seating and landscaping , reclaiming of excess street space for public use, space for outdoor café and restaurant seating and merchant displays.
• The Integration of pedestrians with transit and available transit rider amenities at key stops.
• Safe convenient pedestrian routes to transit mutual features that benefit pedestrian safety and comfort and transit operations such as bus bulb outs and boarding islands.
• The promotion of public safety, an ‘eyes on the street ‘ approach that will enhance residents sense of safety and security from crime and violence.

The other project called the Valencia Streetscape Improvements Project spans from 15th Street to 19th Street and is intended to provide a safer, more inviting environment for its users. Back in 2004, the Municipal Transportation Agency (MTA) secured an Environmental Justice Grant from Caltrans to develop a Pedestrian Safety Plan for Valencia Street. The MTA held four meeting in 2004-2005 in the community, whereby the community expressed a strong desire to widen the sidewalks along Valencia Street and improve the streetscape. Then in spring 2006, MTA Planning and the Department of Public Work’s (CPW) Great Streets Program teamed up to create a collaborative vision for all users of Valencia Street. Eventually the project secured funding through a multi-year federal transportation bill, two federal Transportation for Livable Communities (TLC) grants and local support. Last month the project began and will move block by block over the next nine months, during which time the Department of Public Works crews will: remove the striped center median, widen the sidewalk, add bulb-outs at some intersections and in the middle of some blocks, and add pedestrian scale lighting, art elements, bike racks (assuming the injunction mentioned in my last blog is lifted), and new street trees, widen Parking lanes to prevent dooring of bicyclists, and add curbside loading zones for trucks.
As we move into the future, a future concerned with global and environmental issues, we consider all these changes to our city’s streets—especially those concerned with safety-- critical not only for our city but for the all communities everywhere that want to create sustainable living environments . By redesigning our city around public transportation and creating walkable and bikeable streets, we can change our city into a safe, healthy, livable and affordable one, thereby providing an example to other cities here and around the globe interested in doing the same.

Recently, friends from Europe stayed with me and my family. During their time here they spent their days touring San Francisco by bicycle. I asked them if they felt San Francisco was as bike friendly city as most European cities. They said that they felt drivers were really aware of bicyclists and looked out for them. But they felt that bus drivers were not very considerate, if not hostile, toward bicyclists. I explained how cyclists have fought hard, with the help of the San Francisco Bike Coalition (SFBC), educating motorists as well as buses on being both cautious and vigilant as they share the road with cyclists. At the same time, I also explained how some bicyclists seem to have less interest in following the vehicle rules of the road and believe that red lights and stop signs are meant only for motorists. My friends agreed with me when I pointed out that there is a victim attitude among some bicyclists who feel --because buses are bigger, and can kill bicyclist, and most streets are not designed for bikes-- that they are at a disadvantage on the road and should make their own rules. Bus drivers who encounter bicyclists with the victim attitude usually end up developing the same victim mentality and, as a consequence, ignore the safety of all cyclists. One might think there may never be a middle ground for bus drivers and bicyclists. Every story has at least two sides, though. The bottom line is this: If either bicyclists or bus drivers make their own rules on the road, that can, and usually does, lead to dangerous situations. But buses and bicyclists can coexist as long as bus drivers and motorists act professionally and bicyclists follow the rules of the road. Each year there are more bicyclists on the road, and everyone on the roads would follow the laws of the road, as well as use a little courtesy, our streets will be far less dangerous.
Since cyclists will be increasingly populating the roads and asking for more space in the years to come, we need, now, more than ever, the creation education campaigns that foster safety and respect among cyclists as well as bike network improvement projects that keep our city streets a safe place for all. There is good news. The SFBC has spent years planning and appearing at public hearings in an effort to get the city to implement improvements for cyclists and motorists on the road called the SF Bike Plan. This summer, 3 years after a lawsuit and injunction that barred any improvements and the city’s Bike Plan, the SFBC is celebrating their biggest victory: on June 26th, 2009 the San Francisco Municipal Transportation Agency voted to adopt their bicycle plan. Once the injunction is lifted, the vote gives a green light for 45 new bike lanes throughout the city. The plan also includes the implementation of on-street bike parking corrals, experimental colored pavement treatments and thousands of new bike racks. Another bit a good news for the SFBC is Mayor Gavin Newsom’s recent announcement that he will implementing a package of trial improvements to market street beginning September 29th, modeled on Projects for Public Spaces –which is in partnership San Francisco Great Streets Project and SFBC. As we collectively move forward during these planned changes, go safely and considerately out there, people!

For the past 34 years, California has had a cap on the amount of non-economic damages that an injured person may recover in a medical malpractice lawsuit. Under the current law in California, if a doctor is supposed to repair a knee injury but amputates the leg due to being drunk, for example, the maximum amount of non-economic damages (pain and suffering) that can be recovered in a personal injury case is $250,000.00. If that person’s one passion in life was dancing, and a jury awards $500,000.00 in non-economic damages, the award gets reduced to $250,000.00. If that person had jogged every day to alleviate stress, keep their weight down and maintain a healthy heart rate, and a jury awards $650,000.00 in non-economic damages, the award gets reduced to $250,000.00. It is absurd to think that the value of $250,000.00 in 1975 is anywhere close to the value that same amount represents today, which essentially means that the maximum an injured person can recover, has steadily gone down in the State of California.

The cap on medical malpractice lawsuits was supposed to help both consumers and doctors by keeping insurance premiums from rising, which the insurance industry likes to blame on lawyers, juries, and our civil judicial system, in general. It is more than doubtful that health care premiums, as well as medical malpractice premiums for doctors, have consistently risen in California, despite this cap in medical malpractice lawsuits.

The constitutionality of the law that caps these damages was recently upheld in a California Court of Appeal decision, and the California Supreme Court refused to review the decision, which means that the cap will remain in place. The insurance industry is very powerful, has tremendous resources and influence, which is important to take into consideration whenever it sends out its claims of “tort reform” and “lawsuit abuse” in our system.

New research blames changes in cigarette design for fueling a certain type of lung cancer, according to an article put out by the associated press. In the article Dr. David Burns of the University of California says that “up to half of the nation’s lung cancer cases may be due to those practices.” Researchers conclude that it is riskier to smoke cigarettes today than it was a few decades ago. In the 1960’s there was a movement toward lower-tar cigarettes. Consequently, that movement changed cigarettes so that they contained less tar and more Nitrosamines, a type of carcinogen. Nitrosamines are a byproduct of tobacco processing and levels vary for a variety of reasons, one of which is curing techniques. The research states that while the nation’s total lung cancer cases have inched down as the numbers of smokers has dropped in recent years, the individual smoker’s risk of getting cancer is higher. The research shows that when smokers switched to the lower tar cigarettes, they began inhaling more deeply to get their nicotine jolt, which pushed cancer causing smoke deeper into their lungs.

Congress is currently debating the issue of whether the FDA should regulate tobacco. President Obama supports legislation that would allow the FDA powers over tobacco products. The Office Management and Budget states: “Cigarette smoking is the leading preventable cause of death in the United States and is a contributing factor to scores of diseases and conditions inflicting misery upon millions of our citizens…Further, Tobacco products—including nicotine and possibly after the study, menthol.” Under new proposed legislation, the FDA would have the power to decide such things as whether to set caps on certain chemicals in tobacco smoke. The FDA would also be given the power to approve or reject new tobacco products and to expand market restrictions and warning labels. Here at the Brod Law firm we see the issue as problematic. The problem with the FDA regulating cigarettes and having its name on warning/safety labels is that it will give the impression that the FDA is saying it is safe to use. Also, tobacco companies may try to protect themselves against any liability by claiming they are in compliance with FDA standards. But we do believe that any regulation is a start in the right direction and that it is better than no regulation at all. Any effort by the government to protect the public from product injury is always a good idea no matter how politically heated the subject.

In October 2003, a Jeep was rear-ended by a tractor trailer in Virginia, causing the Jeep to roll over several times. A passenger in the Jeep suffered brain damage as a result of the crash, and a Virginia jury awarded her $10.2 million dollars. The trucking firm that was a defendant in the case argued that the woman’s brain injuries were due to a previous incident, not the crash involving the Jeep. Although the jury awarded $10.2 million dollars, the matter was appealed, and the Virginia Supreme Court upheld the jury verdict.

It is 2009, nearly six years after this tragic event, and the injured woman is only now receiving closure to her ordeal, at least as far as it relates to the judicial process. Corporate defendants often do not take any responsibility, whatsoever, for the injuries they cause. Despite a jury of her peers finding that she was entitled to an award of damages, the corporate defendants in the Virginia case fought for years, undoubtedly spending hundreds of thousands of dollars. The “tort-reform” lobby, which is primarily funded by the insurance industry, puts massive efforts and spares no expense into labeling many lawsuits as “frivolous”. However, the public rarely hears about cases involving a “frivolous defenses”. There are many instances in which a corporate defendant or insurance company vigorously defends a claim (which results in a lawsuit), even though there is no good faith basis to do so, or even if it makes no sense from a financial basis. In many cases, the corporate defendant or insurance company will spend far more in defending a claim than the total amount sought by an injured person. The reason is to “send a message” to injured people that should they pursue their rights, it will be costly, time consuming, difficult, and will be fought tooth and nail. It is therefore very important to ensure that when an injured person in selecting a lawyer to help them, that the lawyer be prepared to vigorously fight for their rights.

With unemployment on the rise and the current economic downturn expected to stay with us in the New Year, there has been little to look forward to in 2009. However, there are several laws which will take effect on January 1st, laws that will protect workers, consumers and the environment and improve public safety and health access. Here in San Francisco, there will be some positive changes specific to the safety of our community. On January 1, fines will double for traffic violations on 19th and Van Ness Avenues—two of the busiest and most dangerous streets in San Francisco. Tickets will range from $137.00, for speeding, and $2, 750, for reckless driving. The San Francisco Chronicle recently reported each avenue, between 2003 and 2007, was the site of more than 500 collisions, a dozen of which involved pedestrians. And according to the examiner.com, 19th Avenue has been dubbed a death trap for walkers, serving 85,000 vehicles and 80,000 pedestrians each day, while Van Ness Avenue serves about 80,000 commuters each day. As part of his signing this bill, Schwarzenegger has pledged that public safety is his top priority, pointing out how critical it is to ensure the safety of everyone on our roadways. Here at the Brod Law Firm, we believe these new penalties will encourage drivers to pay attention and slow down, which should, in turn, begin to put an end to the loss of innocent lives. For we have seen enough wrongful death, car accident and motorcycle accident suits-- which have been the result of careless driving on these two roads-- not to take note of the importance of this new, and long overdue, law.

Text messaging is the new way millions of Americans communicate. The American Medical Association (AMA) voted this month to advocate for state legislation prohibiting the use of hand held devices used to text message while driving. An AMA board member, Peter Carmel says that texting while driving takes the driver’s attention off the roads, which leads to accidents. Here at the Brod Law Firm, we feel that fact is an obvious one, one that pretty much goes without saying. However, when Peter Carmel stated that text messaging while driving causes a 400 percent increase in time spent with eyes off the road, we felt that fact is a less obvious one, is one that all drivers should be aware of—mostly because it means our roads that much more unsafe while we share the road with texting drivers. Currently, seven states, California included, have bans on text messaging while driving because of the risk to public safety. The AMA says it will continue to support additional states in the mission to ban text messaging by motorists. We applaud the AMA and their efforts to keep the public safe from injury, as we know all too well of the inherent dangers that exist for drivers, and how a catastrophic or death related accident can happen in a split second after a driver takes their eyes off the road.

After we read the news regarding the AMA’s efforts to ban texting while driving, we felt it is not only drivers who text while driving that pose a health risk. We thought: what about walking and texting? While we support raising public awareness regarding issues of safety and text messaging while driving, we also feel it is important that public awareness is raised regarding pedestrian safety and texting while walking. Over the past year we have come across many articles relating to pedestrians being injured while texting. The American College of Emergency physicians issued alerts regarding these types of accidents . Most injuries related to texting and walking are minor, such as head injuries from bumping into poles or sprained ankles from twisting as they stepped off a curb. Some injuries, however, are quite serious or even deadly. For example, according to an article in the San Francisco Chronicle, a San Francisco woman was killed earlier this year when she stepped off the curb while texting. We believe the message here is very clear: when you are mobile, please keep your eyes on where you are going, not on a hand-held device. Also, don’t underestimate how safe you feel while driving or walking. And lastly, accidents can occur out of nowhere --so the more alert you are while you are mobile, the better chance you have of not injuring yourself.