SUMMER 2004

For decades, railroad workers have been unknowingly exposed to benzene. Benzene is an organic chemical that is a building block of many other organic chemicals. It is a colorless liquid with a pleasant odor. Benzene is found in gasoline, solvents, including Saf T Kleen, mineral spirits, and even diesel exhaust.

Benzene is a carcinogen. It is a recognized cause of leukemia and a disease known as multiple myeloma. Unfortunately, these diseases are often fatal. Benzene can also irritate the eyes, skin, nose, and throat.

Shopcraft railroad workers have used gasoline to clean parts, tools, and grease from their hands. This usually occurs when other commercial solvents are not available. When the gasoline makes contact with the worker's skin, the benzene is absorbed through the skin. Benzene is also absorbed through inhalation. Usually, the railroad employer has not provided protective gloves or otherwise informed the worker of the health risks of benzene exposure. Benzene exposure levels are regulated by the Occupational Safety & Health Administration. Lower levels of exposure have been recommended by the National Institutes of Occupational Safety and HEalth (NIOSH) and the American Conference of Governmental Industrial Hygienists (ACGIH)

An in-depth discussion of benzene and its health effects can be found on line at the New Jersey Department of Health and Senior Services.

Gavin Law Firm has success­fully represented numerous railroad employees who have contracted leukemia or multiple myeloma as a result of exposure. For more information on this subject, please feel free to contact Bill Gavin at (888) 360-0100.

Understanding Automobile Insurance

Many people believe that they have good or adequate automobile insurance because they have "full coverage." An automobile insurance policy typically consists of a number of different types of insurance and the term "full coverage" means very little when considering whether the insurance coverage provided by a policy is good or even adequate.

The liability insurance contained in automobile insurance is probably the most familiar to the average consumer. This coverage states that the insurance company will defend any claim brought against the insured by someone claiming that the insured caused personal injury or property damage as a result of the operation of the insured vehicle. The policy will also provide that the insurance company has the option to settle any such claim and has the obligation to pay any judgment resulting from the claim up to an amount not greater than the amount commonly known as the "limits."

The term "limits" simply is the maximum amount the insurance company will pay under any particular coverage of a policy. The limits will vary from coverage to coverage contained in the policy. For example, the limits for liability coverage will be different than the limits for medical payments coverage, if any, in the policy.

Medical payments coverage is insurance that is also often found in automobile insurance policies. This coverage states that the insurance company will pay the medical expenses of the insured when the insured is injured while occupying the insured automobile. For medical payments coverage, the insured is either the person named in the policy or anyone else occupying the automobile. Again, the amount the insurance company will pay is defined in the policy.

Medical payments coverage does not depend on fault. It is a type of insurance intended to provide medical treatment for someone who is injured while occupying an automobile.
An automobile insurance policy also contains various coverages for damage to the automobile.

For example, the policy may provide coverage if the automobile is damaged by acts of nature, wind, hail, etc. and by collision with another automobile. This type of coverage, again, does not depend on fault. For example, if a tree falls on your automobile, the coverage typically known as comprehensive coverage will pay to have your automobile repaired. Also, if another person strikes your automobile, your insurance company must repair the automobile even though the other driver might have been at fault. This type of property insurance coverage typically involves a deductible that the insured is required to pay.

The most important automobile insurance coverage

For the average consumer, the least understood but the most important coverages in the automobile insurance policy are the uninsured and underinsured coverages. These coverages protect the insured from the catastrophic effects of injury caused by an uninsured or underinsured driver.

Uninsured motorist coverage states that if an insured is injured by the operator of an automobile that is not insured, the insurance company issuing the uninsured coverage will pay the damages the injured insured could have recovered from the uninsured driver. Underinsured coverage requires the insured's insurance company to pay the difference between the insured's damages and what the insured is able to recover from the at-fault driver. Underinsured motorist coverage is important when the at-fault driver does not have enough insurance to pay the full damages caused by his negligence.

The critical issue in uninsured and underinsured motorist coverage is the limits. For example, if the limits of your insurance policy for uninsured motorist coverage is only $20,000.00, the most your insurance company will pay for damages caused by an uninsured driver is $20,000.00. If an insured is seriously injured by an uninsured driver and the insured only has $20,000.00 of uninsured motorist coverage, the insured will be faced with serious injuries and substantial medical bills but inadequate insurance to cover this loss.

An underinsured driver is a driver whose liability insurance limits are not enough to cover the damages caused by his negligence. Underinsured motorist coverage states that the most the underinsured insurance company will pay in an underinsured motorist claim is the difference between the limits of the underinsured motorist coverage and the amount recovered from the at-fault driver.
For example: The insured sustained $75,000.00 in damages in an automobile accident caused by a driver who has only $20,000.00 (the minimum required by Illinois law) of limits and liability insurance.

The insurance company of the at-fault driver agrees to pay the injured insured the full $20,000.00 and the injured insured collects this amount. The injured insured also has underinsured motorist coverage with limits of $50,000.00. The injured insured will not be able to recover the full $50,000.00 from his insurance company (even though his loss totals $75,000.00) but will only be able to recover the difference between $50,000.00 (his limits) and the $20,000.00 recovered from the at-fault driver, ie. $30,000.00.

Consumers often do not understand that what they recover from the at-fault driver will be deducted from the limits of their underinsured motorist coverage. Often, this leads to the result that the underinsured coverage is meaningless even though the consumer paid for it in his premium. This result occurs when the injured insured has only $20,000.00 of underinsured motorist coverage and the at-fault driver has liability insurance with limits of $20,000.00 or more. Because the amount that is recovered from the at-fault driver will be deducted from the underinsured motorist limits, underinsured motorist limits of $20,000.00 is, in most cases, worthless.

Unfortunately, Gavin Law Firm has seen many cases in which someone has suffered serious injuries involving substantial disability and high medical bills. When the injured person does not have high uninsured motorist or underinsured motorist limits, it is almost certain that the injured person will not be fully compensated for their loss.

Protect yourself by understanding your insurance policy

You can protect yourself from the catastrophic result of inadequate insurance by understanding each of the coverages in your policy. The coverages provided by your policy are described on the front sheet of the policy known as the declarations sheet. This sheet will tell you all of the coverages provided and the limits of each coverage.

Insurance agents typically will not explain uninsured and underinsured coverage to consumers. The consumer must protect himself by making sure the coverages are in the policy and that the limits are as high as practical for the consumer. Some insurance companies offer an "umbrella policy" that will raise the limits of the uninsured and underinsured limits to as high as one million or two million dollars. The relatively small premium for this extra coverage is money well spent.

Pennsylvania Medical Society Admits:
Can't Back Up Claims of Doctor Exodus

The Pennsylvania Medical Society admits it made unsubstantiated claims in its campaign to scare citizens and lawmakers into believing that a medical malpractice crisis justifies changing the state constitution and curtailing the legal rights of injured patients. The medical society has insisted that malpractice insurance costs have driven as many as 1,700 doctors out of Pennsylvania. But on April 22, the chairman of the medical society finally acknowledged to state legislators that data shows the state has gained 800 doctors over the past two years, as reported by the Morning Call of Allentown. The press release reads: "...This admission is in accordance with one of the crucial findings by Public Citizen, which issued reports in 2003 and 2004 presenting statistics about medical malpractice in Pennsylvania. Public Citizen found that the number of physicians practicing in the state increased by 1,859 from 1994 to 2002. The most recent report also found that the annual number of medical malpractice payouts has declined and the number of large jury awards in malpractice cases has dropped sharply. 'The doctors' lobby wanted Pennsylvania to blame its malpractice insurance problems on injured patients and their law­suits - and the medical society was willing to use no facts and false facts to make its argument,' said Public Citizen's Congress Watch."
Source: ATLA Law News Digest, May 6, 2004

The Fallacies of Tort "Reform" Rhetoric

Tort "reformers" claim that too many lawsuits lead to increased costs and delays in the civil justice system. President Bush twice denounced "frivolous lawsuits" in his State of the Union address in January. But researchers have been unable to confirm the existence of a "litigation explosion."

Tort filings in state courts have declined by 9 percent since 1992, according to the National Center for State Courts (NCSC). The cases that are on the rise are contract cases - generally businesses suing businesses. According to the Court Statistics Project, contract filings have increased by 21 percent since 1995.

Civil litigation is decreasing in the federal courts as well. The Administrative Office of the U.S. Courts found federal civil filings dropped from 280,000 in 1998 to 265,000 in 2003, and the percentage of personal injury cases in that time fell from 21.2 percent to 18.3 percent of all civil cases filed. Less than 20 percent of all federal civil cases are tort cases, according to the U.S. Bureau of Justice Statistics (BJS).

The McDonald's coffee case and others that have drawn media attention have distorted the public perception of the legal system, giving people the impression that huge sums are commonly awarded for questionable wrongs. In fact, the media report only large verdicts or unusual cases that they deem newsworthy.

And the woman who spilled the McDonald's coffee? She was 79, in the passenger seat of a stopped car, and the coffee scalded her so badly that she suffered third-degree burns and needed skin grafts. During discovery, McDonald's produced documents showing more than 700 claims from people burned by its coffee between 1982 and 1992. The judge reduced the jury award of $2.9 million in compensatory and punitive damages, and the woman settled for about $600,000. An injured person received a fair award. That's the story that needs to be told.

Irrational juries frequently hand out multimillion-dollar punitive damages awards to plaintiffs.

Again, the media feeds the belief that extraordinary cases are the norm. The awards in punitive damages cases reported in the 1980s and 1990s in the New York Times, Wall Street Journal, Washington Post, Los Angeles Times, and Christian Science Monitor exceeded the typical punitive award in the United States by 88 percent, according to the Center for Justice and Democracy.

Cases that result in a punitive damages verdict are rare, and the typical amount awarded is low. And most punitive damages are never collected because of post trial reversals, settlements, and defendant insolvency.

A 2002 study conducted by the NCSC and Cornell University debunked the “out-of-control jury” myth in its analysis of more than 8,000 civil trials that ended in 1996 in 45 large trial courts nationwide: It found that juries awarded punitive damages in only 2 percent of all civil cases.

The U.S. Department of Justice studied 10,278 tort trials conducted in 1996 in the nation’s 75 largest counties and found that punitive damages were awarded in only 3.3 percent of the 4,879 trials that plaintiffs won – that works out to 162 cases. Most of the punitive awards were for less than $40,000. Juries, like judges, tended to award punitive damages in proportion to compensatory damages.

In fact, the NCSC-Cornell study found that injured consumers are more likely to win their cases before a judge than before a jury (plaintiffs won 61.8 percent of bench trials, but only 47.3 percent of jury trials). Judges awarded punitive damages in 6.7 percent of cases, while juries imposed them in only 4.7 percent of cases. And judges’ awards were higher.

When juries speak, companies listen: Because of verdicts that included punitive damages, children’s pajamas are no longer flammable, medical devices and auto fuel systems have been redesigned, and farm equipment and factory machinery include safety guards.

Urban Legends in cyber space

An e-mail circulating on the Internet describes cases that vied for the annual “Stella” award for the most frivolous lawsuit in the United States. These cases show why we need to stop people from filing base­less claims.

The cases nominated for “Stella” awards – mockingly named for Stella Liebeck, the McDonald’s coffee plaintiff – are outrageous, but they aren't real. They’re modern-day urban legends: stories everyone “knows to be true” and “heard from a reliable source” but that never include an actual case name or citation.

The nonpartisan, professional debunkers at Snopes.com concluded that “all entries in the list are fabrications” and that “a search for news stories about each of these cases failed to turn up anything.”

The tort “reformers” finger pointing at frivolous lawsuits has led the public to believe almost any denunciation of trial lawyers, yet they conveniently “forget” that the number of contract cases filed in state courts was 50 percent higher than that of injury lawsuits in 2000, according to the American Bar Association.

If you want to see frivolity – like Mattel suing a man for giving away toys to dying children, or Kellogg’s suing Exxon because its logo look too much like Tony the Tiger of Frosted Flakes fame – business-to-business lawsuits are a good place to start.
Source: TRIAL (excerpts), July 2004

Secondhand Smoke: A Health Risk for Food Service Workers

More than half of the nation's food service workers are at risk from exposure to job-related secondhand smoke, according to a study funded by the Wilmington, DE-based American Legacy Foundation.

In a ranking of 38 major occupations, food service workers were listed at the bottom among workers protected by smoke-free workplace policies. White-collar workers, including teachers and health care workers, have the greatest protection from smoke on the job.

Even among food service workers, considerable variation was seen in those with a smoke-free policy. Individuals whose job responsibilities involved direct interaction with customers reported significantly lower rates of smoke-free policies than those who were primarily involved in food preparation and cooking. Nearly 70 percent of kitchen workers had smoke-free policies, compared with 28 percent of waiters/waitresses and just 13 percent of bartenders.
Source: Safety + Health, June 2004

Safety Tips
Crossing track safely means staying alert

A train hits someone in America once every two hours, according to the Federal Railroad Administration. When involved in a collision with a train, motorists are 40 times more likely to die than when they strike any other type of motor vehicle. All drivers must be careful around train crossings for these reasons, but truck drivers should pay extra attention. According to federal statistics, trucks that have a trailer collide with trains more than nine times per week.The Federal Railroad Administration offers this advice to truckers, which all drivers should bear in mind.

As you approach the crossing:

• Never ignore flashing lights, whistles, closing gates or stop signs.
• Slow down, look in both directions and test the brakes.
• Be certain you don't see a train. Roll down the vehicle windows, turn off fans and radios, and listen for warning whistles.
• If a stop is necessary, stop no closer than 15 feet and no farther than 50 feet from the tracks.
  

As you begin to cross:

• Never stop on the tracks. Never enter a crossing unless you have enough space to fully clear the tracks.
• If the gate comes down after you have started across, drive through the gate even if it means breaking it. Gates are designed to break.
  

If you get stuck on the tracks:

• Get out of the vehicle and quickly move away from the crossing in the direction of the approaching train to avoid injury from debris.

• Immediately call the posted 800­number or 911 to alert police about the stalled vehicle and ensure the railroad is contacted. Provide the exact location of the crossing, using the Department of Transportation crossing number. The number may be posted on the cross buck post or signal post, box or bungalow. Also, give the name of the road or highway that crosses the tracks.
  

Source: Safety + Health, July 2004

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