Mesothelioma Asbestos Lawyer, DuBose Law Firm, PLLC

Main navigation

You are here: Home / Archives for texas personal injury lawyer

texas personal injury lawyer

Texas Wrongful Death and Survival Claims Explained

By

There is often confusion about Texas wrongful death and survival claims, but Dallas serious personal injury attorney, Ben DuBose, explains, “When tragedy strikes and a person dies because of someone’s negligent conduct, Texas law provides for two general types of recovery in our civil court system: wrongful death and survival claims.”

Survival claims

Survival claims are those personal injury claims the deceased individual would have if they were living. The individual’s death does not extinguish these claims. Rather, they “survive” their death and belong to the estate of the decedent. Survival claims include claims for pain, suffering, mental anguish, lost wages, as well as medical expenses related to treatment of the injury that caused the death.

Wrongful death claims

In addition, claims can be brought by the family of the decedent for wrongful death. Wrongful death claims exist by statute in Texas and belong to the family members of the decedent for the loss of their spouse, parent, or child.

How wrongful death and survival claims work together

DuBose points out that “while wrongful death and survival claims are separate claims, they are brought in the same lawsuit.”

A surviving spouse, parent or child may bring the wrongful death action. However, if none of those individuals have brought the claim within three months of the death of their loved one, the executor of the estate may bring the claim.

Surviving siblings do not have standing to bring a wrongful death action in Texas. However, most states have a wrongful death statute and the classes of relatives with standing to bring a claim vary from state to state.

In some Texas wrongful death claims, exemplary damages are available. Exemplary damages are permitted if the jury finds a wrongful death is caused by a willful act or omission, or by gross negligence. The purpose of exemplary damages is not to compensate the family, but to punish a wrongdoer and to make an example that willful or grossly negligent behavior will not be tolerated.

The award of damages in a Texas wrongful death claim is typically made by a jury. The jury allocates the damage award among the surviving family members in proportion to the injury they suffered as a result of the untimely death.

The Texas wrongful death statute can be found here.

Popcorn Lung in E-Cigarette Users A Possibility

By

According to a Harvard study, a chemical, diacetyl, may cause a condition called Popcorn Lung in e-cigarette users. Popcorn lung was first observed in the early 2000s when workers at a microwave popcorn factory were sickened by breathing the chemical, used because of its buttery flavor.

Popcorn lung in e-cigarette users

E-cigarettes come in many flavors, making them appealing to teenagers as well as adults. Most users think these are a healthy substitute for smoking cigarettes. Unfortunately, they are misguided. The same chemical, diacetyl, that produced irreversible bronchiolitis obliterans and even death to workers in popcorn factories, is present in many of the flavored ‘juices’ of e-cigarettes.

Harvard researchers found that 39 of 51 e-cigarette brands contained diacetyl and, of the two other harmful chemicals present, 23 included 2,3 pentanedione and 46 contained acetoin. In total, approximately 92 percent of e-cigarettes tested had at least one of the three chemicals.

What is popcorn lung?

The scientific disease name, bronchiolitis obliterans, is actually a scarring of the lungs’ small air sacs. This scarring thickens and narrows the airways. Though the common disease name, popcorn lung, sounds harmless, it definitely is not. The devastating results are coughing, wheezing, and shortness of breath – similar symptoms of chronic obstructive pulmonary disease (COPD) – and can lead to death.

Why is this legal?

Once the effects on popcorn workers were discovered, diacetyl was removed from popcorn products. However, until the May 5th announcement by the Food and Drug Administration (FDA) that they will extend their oversight on tobacco products to include e-cigarettes, there was no FDA oversight. This announcement means that in August key provisions of the Family Smoking Prevention and Tobacco Control Act on sales, marketing, and manufacturing of e-cigarettes will be enforced, but there is a caveat. For three years manufacturers can test their products and complete FDA applications for review while their products can remain in the market.

The 2015 Harvard study concluded, “Because of the associations between diacetyl and bronchiolitis obliterans and other severe respiratory diseases observed in workers, urgent action is recommended to further evaluate this potentially widespread exposure via flavored e-cigarettes.”

While there are groups wanting more proof that there is actual danger, the American Lung Association thinks the danger is real, three years is too long, and the FDA should quickly require removing diacetyl and all other harmful chemicals from e-cigarettes.

Learn more

Even if you are still undecided about the effects of diacetyl in vaping, there are many other additives in e-cigarettes that are harmful, including nicotine, formaldehyde, carbonyl compounds, metals, propylene glycol, glycerol, fine particulate matter, and flavoring chemicals.

Here are two good links. For more public information on e-cigarettes and lung health and for a number of articles on how to quit – or help someone else quit – smoking.

Uber Self-Driving Car Kills Pedestrian

By

The first case of a pedestrian killed by a self-driving car occurred in Tempe, Arizona. This technology is still in the experimental phase, however Uber self-driving cars are on the roads in Pittsburgh, San Francisco, and Toronto – as well as Tempe.

Are self-driving cars safer?

Increased safety was the initial premise for the existence of unmanned self-driving cars. One of the primary causes of automobile accidents is distracted driving. In a robotic car, that should not be a problem, but obviously there are issues to be addressed. Building systems to automatically react appropriately in unexpected situations is a difficult task.

What happened in Tempe?

In this case, the car did have a human in the car as a backup. It appears the car, a Volvo XC90, was going about 40 MPH on dry streets with clear weather at 10 p.m. on a Sunday. An investigation is ongoing since the safety driver did not appear impaired. The victim, a 49 year-old woman, was walking her bicycle in the street. Though this was the first accident involving a pedestrian, one of these autonomous vehicles collided with another car in March of 2017.

Safety measures in place

Because states are eager to encourage testing, there are few regulations in place – not only with Uber, but Waymo, Lyft and Cruise, owned by General Motors. Doug Ducey, governor of Arizona, said in 2017, “We needed our message to Uber, Lyft and other entrepreneurs in Silicon Valley to be that Arizona was open to new ideas.” Originally Arizona mandated a backup driver in the car, but recently that was changed to allow testing of unmanned self-driving cars. This leniency is to boost the economy by allowing a low regulatory environment.

California is on the cusp of allowing unmanned vehicles, but is still investigating the proposition. In its testing of manned self-driving cars, Waymo has produced statistics required by California. When a human has to take control, it’s called a disengagement. In just over a year, Waymo’s cars drove 350,000 miles with 63 disengagements. This averages approximately 5,600 miles between disengagement events, clearly demonstrating the need for more testing before widespread use of unmanned vehicles.

Michael Bennett, an associate research professor at Arizona State University, has been studying the reaction of the public to driverless cars and their artificial intelligence. His comment on the aftermath of the Tempe pedestrian incident reveal his conclusion, “We’ve imagined an event like this as a huge inflection point for the technology and the companies advocating for it. They’re going to have to do a lot to prove that the technology is safe.”

Who’s Fault is Injury from Self-Driving Car?

“Look for insurance companies to lobby for profound changes in state insurance requirements and state laws”, says Dallas lawyer, Ben DuBose. “However, in the Arizona Uber incident, there was a back-up driver in the car. So, there’s still a question of why the back-up driver didn’t disengage and potential liability for her. People will still need car auto insurance and will still have potential liability.”

At the same time, as we head into the self-driving car era, DuBose says to look for additional new legal theories to address the autonomous car features. Automobile manufacturers and software designers will face new product liability claims. As even Volvo Car Corp. Vice President, Anders Karrberg recently testified before Congress “[c]armakers should take liability for any system in the car. So we have declared that if there is a malfunction to the [autonomous driving] system when operating autonomously, we would take the product liability.”

Should Nursing Home Patients Have the Right to Sue?

By

Imagine being admitted as a nursing home patient for rehab from an accident. While there you contract a potentially fatal disease solely the fault of inadequate care.

Maybe you have an elderly parent in another state. You determine that a nursing home close to their friends is the only option for your parent to get the care needed. Then you hear from a visitor that your parent is being neglected, or maybe physically, mentally, or emotionally abused.

In these, and other serious personal injury cases like them, you would generally want to sue – not only for the patient, but to let others know there’s a problem.

The arbitration clause

During the Obama presidency, a ruling from the Centers for Medicare and Medicaid Services (CMS) banned facilities that accept Medicare and Medicaid funds from requiring residents to sign pre-dispute arbitration clauses. This ban gave them the option to sue – a positive step for patients already stressed.

This ruling never took place due to a preliminary injunction by the American Health Care Association, the nursing home industry trade group. Now it’s possible there will be no option to go to trial due to a new rule by the Trump administration. Nursing homes would be able to continue the requirement for new residents to sign an arbitration clause. Refusal could mean no admittance.

The proposed new rule would require the agreement to be written in plain language, not legalese, with verification that the person understands. Kelly Bagby, a senior counsel with the AARP Foundation, does not think this makes it fair. “The ‘plain language’ requirement ‘gives with one hand the idea that it’s transparent, and takes away with another by saying ‘you don’t have a choice but to sign this.’”

The pros and cons of arbitration

Signing an arbitration clause in a contract – a common procedure at admittance – takes away the patient’s right to a trial. All conflicts must go through a third-party arbitration, generally more secretive than through a civil court, and awards to the plaintiff are up to 35 percent lower. To a population already in a stressful situation, signing this is often misunderstood or perceived as just one more piece of paper to sign.

There are supporters of arbitration. As Matt Webb, senior vice president of the U.S. Chamber of Commerce’s Institute for Legal Reform says, “arbitration is a system that is simpler, fairer, and faster for all parties concerned.” He goes further to say that “Studies basically show that if the arbitration agreement’s not done prior to a dispute arising, very few if anyone ever really agrees to go into arbitration at that point.”

This statement says a lot about the fairness of arbitration. If it’s so fair and simple, why wouldn’t a person agree without coercion?

What you can do

This is not a ruling – yet. If this concerns you, contact your U.S. representatives and senators and give them your opinion. “We the people” still have a voice.

Microsoft No Longer Forces Secrecy in Sexual Harassment Claims

By

In December, Microsoft announced it will no longer force secrecy in sexual harassment claims through the contract clause called forced arbitration. Going forward, Microsoft’s contracts will have this section removed.

What is forced arbitration?

For too long women, and men, subjected to sexual harassment in the workplace have been unable to take the matter to trial due to this clause. This results in fewer public trials and smaller settlements for the victims as claims are mediated through a third party without the ability to go to court. Just as troubling, forced arbitration hides what may be a widespread or ongoing problem within an organization from public knowledge.

Emily Martin, general counsel and vice president for workplace justice at the National Women’s Law Center, said, “By doing this, Microsoft is saying that it’s going to take concrete steps to make its workplace culture more conducive to addressing and preventing harassment. That message is important above and beyond the impact on individuals whose contracts are about to change.”

Martin further stated, “While Microsoft apparently didn’t use these provisions across its workforce, some companies use them more indiscriminately across their workforces to bind lower-wage workers as well as higher-wage workers. By standing up and saying that it believes that these provisions aren’t fair to employees, Microsoft helps change the conversation in a way that has the potential to help a lot of people by increasing the pressure on companies to do the same.”

Will this change sexual harassment claims?

This is a step in the right direction, however approximately 60 million American workers have these arbitration clauses in their contracts, and according to a study by the Employment Rights Advocacy Institute for Law & Policy, 80% of America’s 100 largest companies use them.

While changing the clauses and culture in the large companies would make a huge impact, working in a small company may still bind employees to forced arbitration in the event of sexual harassment. These companies could be fearful of lawsuits that would put them out of business and are not nearly as visible as a company such as Microsoft. Therefore, they will probably not face media disapproval in the same way and are not willing to take their chances in a court of law just to avoid negative publicity. For them, the forced arbitration clause is an insurance policy.

Legislators see need for reform

In December 2017, a bipartisan group of lawmakers called for legislation to end forced arbitration for sexual harassment claims in the workplace. Rep. Cheri Bustos, a Democrat from Illinois sponsored two pieces of legislation: H.R.4734 and H.R.4570. Sen. Kirsten Gillibrand, Democrat from New York, also backs the bill. Sen. Lindsey Graham, Republican from South Carolina, called on the U.S. Chamber of Commerce to support the bill. Both bills were referred to the subcommittee on Regulatory Reform, Commercial and Antitrust Law.

 

Other blog post from DuBose Law Firm

Arbitration Agreements Change for Nursing Homes and Long Term Care Facilities