South Carolina Personal Injury Law Blog

SC Governor Attempts to Interfere with Workers' Compensation Commission

South Carolina Governor Marshall (Mark) Sanford has attempted to exert his will upon the South Carolina Workers' Compensation Commission.  Basically, he is trying to tell an arm of the judicial branch how to do its job, ignoring the mandates established by the legislative branch when it established the Commission.  The following is an article written by John P. Freeman, who is the John T. Campbell professor of business and professional ethics at the University of South Carolina School of Law, which provides excellent insight and analysis to this situation:

THE GOVERNOR'S INTERFERENCE

We all studied civics in school. We learned about such things as how there are three separate branches of government: the legislature, the executive and the judiciary. Remember the lesson? We were taught that the legislature writes the laws, the executive branch enforces the laws and the judiciary interprets the laws. This separation of powers was designed to protect citizens from excessive power being wielded by any single branch.

Unfortunately, it appears Gov. Mark Sanford cut class the day the foregoing civics lesson was taught.

His lack of education about separation of powers (or his deliberate disregard for the concept) was shown on Sept. 20 when he promulgated an executive order that directed commissioners on the Workers Compensation Commission to change how they decide cases. He commanded them to strictly use “objective standards” in rendering awards.

His aim was to reduce awards for injured workers, thereby saving money for his political base, namely the business community and insurance companies. What Gov. Sanford sought to orchestrate was a wealth transfer: Workers take less, his political base pays less.

Make no mistake about it. Gov. Sanford, the executive branch’s leader, intended to change the law by manipulation of judges he assumed he could control. We know this because when he signed the order at his press conference, comments made by him and his invited guests, business lobbyists, were captured on videotape. On that tape we find Gov. Sanford billing his “objective standards” approach as adding to the workers compensation law something “that was lacking.” Business lobbyists present at the press conference praised Gov. Sanford for “today... implementing objective standards into the workers compensation system for the first time.”

This new requirement pleased the business lobbyists since the Legislature, the government branch actually empowered to write laws, had refused to enact objective standards in the last legislative session.

To enforce his command that workers comp awards be reduced, Gov. Sanford’s order demanded that each commissioner report to the governor quarterly about adherence to the order’s award-cutting command. Implicit in the reporting requirement was the suggestion that failure to follow directions exposed a recalcitrant commissioner to punishment, either removal or the governor’s failure to reappoint.

One of the lobbyists at the order-signing press conference explained that the governor’s right to pressure workers compensation commissioners to change the law was rooted in a “pretty simple concept.” The commissioners, he explained, “are not judges.... They are part of the executive branch. (Gov. Sanford) is the leader of the executive branch.” Another lobbyist later chimed in that “Even making a decision on whether or not to follow the governor’s executive order is improper because the commissioners are not judges.”

What smug business lobbyists and Gov. Sanford have now learned is that a Workers Compensation commissioner is not a puppet on a string. Each actually is a judge from an ethical standpoint, having been placed under the Canons of Judicial Ethics by the Legislature in 2005. Those ethical precepts demand that commissioners must act 24/7 with impartiality and integrity. They are ethically commanded to be faithful to the law and to disregard outsiders who seek to steer their decision-making.

The commissioners’ high ethical standards prevent them from dispensing favors to special interest groups, even when the governor who appointed them orders them to do so.

Political conservatives decry judicial activism, and Gov. Sanford presents himself as a conservative. But his aim in signing this executive order was anything but conservative. It was judicial activism personified. Gov. Sanford sought to manipulate judges in order to change the law to favor the business community, his political base. In their order flatly rejecting Gov. Sanford’s command, the Workers Compensation commissioners offered the governor a make-up assignment for that civics lesson he seems to have missed years ago. They also provided an example of professional integrity he would do well to emulate.

The rest of us can learn lessons from this episode as well. For one thing, we need to remember that those who seek to manipulate judicial decision-making are not working to serve the common good. Their intent is to benefit themselves, the special interest groups. The Workers Compensation commissioners’ steadfastness proves we have public servants with backbones and 20/20 vision.

Mr. Freeman is the John T. Campbell professor of business and professional ethics at the USC School of Law.

Source:  "The Governor's Interference" by Prof. John P. Freeman, published at The State newspaper.

Toxic Torts

A toxic tort the legal term for the harm that results from wrongful exposure of a harmful chemical or biological substance through ingestion, inhalation, skin contact, or skin absorption. Examples of toxic tort litigation include but are not limited to cases concerning, lead paint (causes brain damage, especially in children), asbestos (causes lung cancer, restrictive lung disease), pesticides   (causes birth injuries), toxic molds (causes various symptoms), and electro-magnetic fields from utility wires or major appliances (suspected to cause cancer), and toxic landfill/spill waste (causes leukemia, and other syndromes).

Toxic substances are regulated under the Toxic Substances Control Act (TSCA). The TSCA was enacted in 1976 to give Environmental Protection Agency (EPA) the ability to track the 75,000 industrial chemicals currently produced or imported into the United States. The EPA repeatedly screens these chemicals and can require reporting or testing of those that may pose an environmental or human-health hazard. EPA can ban the manufacture and import of those chemicals that pose an unreasonable risk. Despite government efforts to protect your health, millions of people at home, at work, and during their leisure time are being exposed to and injured by toxic substances every day.

Due to the nature of toxic substance accidents and long latency periods, many cases are often not brought until many years after victims discover they were exposed to the toxins. Exposure to toxic substances is particularly harmful for industrial workers who may have been exposed to high levels of toxins over a long period of time. Exposure to toxic substances is also particularly harmful to children who are generally more sensitive to toxic agents and who have a greater likelihood of exposure as a result of play habits and behavior patterns.

It is rare for toxic exposure to affect just one person, especially in cases of environmental contamination. It is very common for groups of people who have all been exposed to the same toxin because of the same event (for instance, an accidental release of radiation from a nuclear power plant) or because of the same occupation (for instance, repeated exposure to dry cleaning fluid by people in the cleaning industry) to bring legal claims as a group in order to seek redress for wrongful toxic exposure. As a result, toxic tort cases are often brought as class actions.

There are many different legal theories, including negligence, premises liability, breach of warranty, misrepresentation, and strict products liability that are used to establish liability. Proving that a toxic substance has injured a person, however, requires hard work and experience.

At Stevens - MacPhail, P.A., we strive to obtain fair and just compensation for our clients' injuries.  Using our experience and the extensive resources available to us, we focus on achieving the best possible recovery for our clients.  In all matters involving personal injury it is essential that measures be taken promptly to preserve evidence, investigate the accident in question, and to file a lawsuit prior to the deadline imposed by the statute of limitations.

If you or a loved one has been injured, you can call Stevens - MacPhail, P.A. at (800) 897-8856 or (864) 598-9172 or e-mail us to schedule a meeting.  The initial consultation is free of charge, and if we agree to accept your case, we work on a contingent fee basis, which means we get paid for our services only if there is a monetary award or recovery of funds.  Don’t delay! You may have a valid claim and be entitled to compensation for your injuries, but a lawsuit must be filed before the statute of limitations expires.

Statute of Limitations for Product Liability

In South Carolina, product liability suits brought under the theories of strict liability or negligence must be filed within three years after the cause of action occurred S.C. Ann. Code § 15-3-520. A "cause of action" does not occur until the plaintiff discovers or should have discovered that they were injured by the defendant's conduct. If you do not file a lawsuit within this time, you cannot sue.

If the lawsuit is based on contract law, as in the case of a breach of warranty, you must file it within three years after the cause of action occurred. S.C. Ann. Code § 15-3-520. Similar to strict liability and negligence cases, a "cause of action" here does not occur until the plaintiff discovers, or should have discovered, that there was a breach of contract. If you do not file a lawsuit within this time, you cannot sue.

In addition to typical statutes of limitations, state legislatures have also enacted special statutes of limitations for certain types of actions to put outside time limits on certain types of lawsuits. These are referred to as statutes of repose. Statutes of repose typically place an outside limit (usually 10, 15 or 20 years) on certain types of lawsuits, regardless of when the injury is discovered. In South Carolina, injured victims cannot file a product liability suit if the product was sold 6 years before the injury S.C. Ann. Code § 15-3-545. The legislative purpose behind this law is to prevent stale claims and increased insurance rates and promote new product development by manufacturers.

At Stevens - MacPhail, P.A., we strive to obtain fair and just compensation for our clients' injuries.  Using our experience and the extensive resources available to us, we focus on achieving the best possible recovery for our clients.  In all matters involving personal injury it is essential that measures be taken promptly to preserve evidence, investigate the accident in question, and to file a lawsuit prior to the deadline imposed by the statute of limitations.

If you or a loved one has been injured, you can call Stevens - MacPhail, P.A. at (800) 897-8856 or (864) 598-9172 or e-mail us to schedule a meeting.  The initial consultation is free of charge, and if we agree to accept your case, we work on a contingent fee basis, which means we get paid for our services only if there is a monetary award or recovery of funds.  Don’t delay! You may have a valid claim and be entitled to compensation for your injuries, but a lawsuit must be filed before the statute of limitations expires.

Defenses to Products Liability Claims

The following defenses are frequently used in products liability cases:

Product Misuse

A person injured by an allegedly defective product may not be able to recover damages if it is shown that he or she misused the product, or used it in a manner other than that which is expected. Products are generally designed to be used a certain way and serve a specific function. A manufacturer of a product is not liable if an individual is injured while using a product in a way other than the way it is supposed to be used.

The key question is whether the misuse was foreseeable to the manufacturer, since manufacturers of products are required to recognize that some type of misuse by users of their products is expected, and thus the products are required to be designed to avoid foreseeable misuse. The defense of misuse is essentially a defense based on causation (and comparative negligence in non-strict liability negligence cases).

For example, a toaster oven is used to heat food, not warm mittens. If you use a toaster to warm mittens, and it subsequently causes a fire or causes serious burns to your hands, you cannot sue the manufacturer for a defective product because you didn't use the toaster the way it was meant to be used, or in a manner which would be foreseeable to the manufacturer.

Product Alteration

If you substantially alter a product after you purchase it and the product then causes you physical injury, you generally cannot sue the manufacturer alleging that the product was defective.

For example, if you purchase a power saw that has a safety guard covering the blade to prevent injury to your fingers, and you remove the guard because you feel it makes the saw more difficult to use, if you continue to use the saw and cut one of your fingers off, the manufacturer would not be liable.

Control of the Defendant

In order to recover for injuries caused by a product, it must be shown that the product was defective at the time it left the control of the party against whom a claim is made. As such, in the case of a manufacturer, the product must have been defective at the time it was sold and delivered to a wholesaler. In the case of a wholesaler, that time would be when the product is sold and delivered to a retailer. With a retailer, that time would be when the product is sold and delivered to a consumer.

In most design defect cases, the product is alleged to be defective at all times, since the theory is that a fundamental design flaw renders the product unreasonably dangerous- regardless of who�s hands it is in. Needless to say, if the condition of a product changes so as to render the product unreasonably dangerous after the product has left the control of a particular party in the chain of commerce, that party cannot be held liable for damages caused by the product, unless the change was reasonably foreseeable within the scope of the intended use of the product.

At Stevens - MacPhail, P.A., we strive to obtain fair and just compensation for our clients' injuries.  Using our experience and the extensive resources available to us, we focus on achieving the best possible recovery for our clients.  In all matters involving personal injury it is essential that measures be taken promptly to preserve evidence, investigate the accident in question, and to file a lawsuit prior to the deadline imposed by the statute of limitations.

If you or a loved one has been injured, you can call Stevens - MacPhail, P.A. at (800) 897-8856 or (864) 598-9172 or e-mail us to schedule a meeting.  The initial consultation is free of charge, and if we agree to accept your case, we work on a contingent fee basis, which means we get paid for our services only if there is a monetary award or recovery of funds.  Don’t delay! You may have a valid claim and be entitled to compensation for your injuries, but a lawsuit must be filed before the statute of limitations expires.

Strategy in Product Liability Cases

Success in products liability litigation requires experience and diligence, since most product manufacturers will vigorously defend claims against them, and they have virtually limitless resources with which to fight. Winning such cases depends on aggressive representation. Though all cases are different in some respect, the following are some basic procedures that normally are encountered in each case.

The first priority is to secure the product in question and to make sure that all evidence is preserved. This is absolutely vital in cases where a particular unit of a product is at issue (unlike drug defect  cases). In cases involving a motor vehicle (rollover, blown tire, fuel tank explosion, etc.), it is important to secure the wreckage, even if it must be purchased. Once a product is lost it is gone forever, and reconstruction of the cause of an accident becomes vastly more difficult. Realize also that a manufacturer will seek to obtain the product involved before you do in the event it knows the circumstances of an accident, which underscores the need to act promptly. After obtaining the product at issue, it is equally important to store it in a safe place where it cannot be altered or damaged.

In the event that you are unable to retain the product at issue (most likely in auto defect cases) immediately after an accident, it is important to give notice to all parties who come in contact with the product that they must preserve the evidence and that if they fail to do so action will be taken against them for altering or destroying the evidence. It is often necessary to file a court action requesting a temporary restraining order and a preliminary injunction in order to properly secure the property and prevent it from being transferred, manipulated, sold, or otherwise altered.

In order to properly bring a lawsuit against the appropriate parties, it is necessary to assemble a complete history of the product. All parties in the distributive chain should be identified, and the date of transfer between each party should be determined as well. All manuals, instructions, warranties and all other written material that accompanied the product at the time of the original sale and distribution should be gathered. In the event the product was modified or altered in any way, details of what, where, when, and by whom should be obtained. 

Additional investigation should then be performed to acquire all materials related to the product, such as manufacturer's specifications, advertising brochures, instruction booklets, technical data, parts lists, repair manuals, catalogs, advertisements, blueprints, diagrams, and engineering notes. Where feasible, it is also often prudent to purchase additional new versions of the product for independent review and testing, and evaluation of the most recent materials that accompany the product.

Your attorney should also review federal and state laws, regulations, and safety orders concerning certain types of regulated products.  For these products, non-compliance with the laws and regulations can form a powerful basis for alleging defect. Drugs, buildings, automobiles, boats, water, air, food, insecticides, medical devices, aircraft, hazardous substances, highway safety, packaging, mobile homes, natural gas pipelines and occupational safety are some common items of the many areas covered by government regulations which set standards of conduct and performance.

Many of these regulations are policed by agencies that can be a valuable resource as the case moves forward. Among the better-known agencies that can be contacted regarding your case are the U.S. Consumer Products Safety Commission, the National Technical Information Service of the U. S. Department of Commerce, the Occupational Safety and Health Administration (OSHA), the Environmental Protection Agency, the Food and Drug Administration, the Center for Devices and Radiological Health, the National Highway Traffic Safety Administration, the Federal Highway Administration, the Transportation Research Board, the United States Coast Guard, the Federal Aviation Administration, the National Transportation Safety Board, and the National Interagency Fire Council. In addition, there are a number of private entities that conduct research regarding various types of products. These companies can also be a valuable resource for providing information and data to support a products liability case.

In virtually all product liability cases, the services of a qualified expert (and in many cases several experts) is necessary to assist in proving that a product is defective.  Experts are generally professionals in a given field, ranging from professors and engineers, to technicians and mechanics, among many other sources of occupations. In addition to utilizing engineering testimony, consideration should also be given to psychologists or experts specializing in the field of human factors.  A human factors expert is someone who is trained to anticipate the actions a reasonable person might take when approaching and using a given product (often machinery or power equipment).  Such testimony is often helpful in establishing that a product was defective due to design defects, or inadequate warnings or safety devices.  In appropriate cases, testing, either destructive or non-destructive, may be necessary to determine whether there is evidence that the product failed or could fail in the manner theorized by the plaintiff.

Finally, the "discovery" process in litigation allows you to obtain significant items from the munufacturer. Using a form of written questions to the defendants called "interrogatories" in conjunction with a request for documentation, we are able to identify and locate blueprints and diagrams of the product and component parts, the materials used in manufacture and their suppliers, a breakdown and analysis of the manufacturing and quality control processes, the schedule of inspecting and testing of the product, patents and patent applications, dealer bulletins, advertising materials, trade journals and scientific journals, and manufacturing or design changes relating to the product. These items can be indispensable to an expert testifying on a plaintiff's behalf, and may also allow comparison with any local or federal laws regulating the product.

Interrogatories also allow you to identify each person connected with the design not only of the product in question, but of similar products, including employees of the manufacturer and others consulted concerning the design. Reasons for selection of the design in question should be explored, as well as a description of safety features, the persons designing such safety features, and all subsequent testing of safety features. Information regarding safety devices known to a manufacturer but not used should also be obtained. In addition, a description of each test conducted by the manufacturer during the design process, along with all test records, should be obtained from the defendants. Interoffice memos, letters, bulletins, emails, and notes should also be obtained and evaluated.

As you can see, in product liability cases it is essential that measures be taken promptly to preserve evidence, document the chain of custody of the product in question, and to enable engineers or other expert witnesses to thoroughly evaluate the product and your injuries.

At Stevens - MacPhail, P.A., we strive to obtain fair and just compensation for our clients' injuries.  Using our experience and the extensive resources available to us, we focus on achieving the best possible recovery for our clients.  In all matters involving personal injury it is essential that measures be taken promptly to preserve evidence, investigate the accident in question, and to file a lawsuit prior to the deadline imposed by the statute of limitations.

If you or a loved one has been injured, you can call Stevens - MacPhail, P.A. at (800) 897-8856 or (864) 598-9172 or e-mail us to schedule a meeting.  The initial consultation is free of charge, and if we agree to accept your case, we work on a contingent fee basis, which means we get paid for our services only if there is a monetary award or recovery of funds.  Don’t delay! You may have a valid claim and be entitled to compensation for your injuries, but a lawsuit must be filed before the statute of limitations expires.

Rental Reimbursement vs. Loss of Use

A question that is frequently asked by people who have been in automobile accidents is "What is the difference between rental and loss of use?"  Jonathan G. Stein of the California Personal Injury and Insurance Blog answered this question by using the following illustration:

Okay, so your car is damaged in a car accident. You can't drive it and it is in the shop. You think you are entitled to a rental car (because you read this blog, you know you are entitled to a rental car). But what about loss of use? What the heck do you get?

This is pretty easy. If you were not at fault, the other person's insurance is going to either pay for a rental car or loss of use. In other words, you cannot collect both. However, if you do not rent a car immediately, you can collect loss of use for the days you do not rent a car.

For example, your accident is on day 1; on days 2 through 5, you do not rent a car; on day 6, you rent a car until day 10.  You would get 4 days of loss of use (days 2, 3, 4, and 5) and 5 days of rental (days 6, 7, 8, 9, and 10). Rental is basically what it costs to rent a similar car to what you had. If you had a luxury car, that is what you rent. If you had a Ford Focus, then you rent a compact car.

Loss of use is generally calculated at $20 per day. For some cars, it may be more. It is usually not less. But, the $20 per day number is a good number to start with.

In the above example, you get $80 plus your actual of out pocket rental expense. They will not pay for gas or the extra insurance (which most people do not need anyway), but they will pay for tax and fees.

Source:  "Car Damaged in Accident? - Rental vs. Loss of Use" by David Brannen, published at his Injury Law Blog.

Types of Product Defects (Part Two)

In general, there are three types of defects which could render a product unreasonably dangerous:

1. Manufacturing defect  ::  Error in product manufacture or assembly
2. Design defect  ::  Faulty product design
3. Manufacturer or seller's failure to warn of danger associated with use of the product

Manufacturing defects are defects that typically occur in a relatively low number of units of a given product, since the defects occur during the manufacturing process of a product. Any number of problems can occur during production and assembly of complex products -- a screw may not be adequately tightened, a bolt may be missing, wires may be crossed or pieces may be incorrectly soldered. As a result, the product comes off the assembly line in defective condition.

Consider the situation of where a transistor is improperly installed into a hair dryer, causing the unit to smoke and eventually burn up. The manufacturing defect poses a risk of electrical shock, as well as a fire hazard. If it causes a shock or a fire in your home, the manufacturer will be liable for injury and damages which result.

Design defects are inherent flaws in the design of a product, such that even if a product is assembled and produced perfectly, it will always comes out of the factory in dangerous condition. An automobile that will explode upon impact would be considered to have a design defect.

An example would be where a ladder was constructed of lightweight aluminum, which can bend, or cause the ladder to tip with little force.  Even if every such ladder is assembled correctly, it will still create a dangerous situation for users of the ladders.  Such a ladder is considered to have a design defect.

Design defects also apply to the way products are packaged. For example, if an insect poison is sold in a bottle that is prone to leaking, or requires a user�s hands to come in contact with the poison, the manufacturer could be liable for injuries which result from the defective design.

Much of today's product liability litigation consists of design defect cases, and this field is broad enough to cover such claims as asbestos litigation, vaccine and other drug litigation, flammable fabric litigation, dangerous power tool or appliance litigation, defective medical implant litigation (including breast implants), and any other area in which a product's design makes it unreasonably dangerous for its intended use, thereby causing injury.

Inadequate instructions and warnings are also a basis by which a product can be determined to be defective. Inadequate warnings generally are those which fail to prevent the improper use or assembly of a product. Product manufacturers have a responsibility to provide consumers with clear and complete instructions to ensure the safe use of a product.

This is particularly important where the product is "intrinsically dangerous", i.e., of such a character to be harmful in its ordinary use absent proper caution (chemicals, drugs, machinery, etc.). In that case, the manufacturer must adequately warn consumers of the potential dangers, and the alert must be explicit and written in language that is easily comprehensible to the average person.

Failure to adequately and properly warn, with regards to use, handling, dangers, and other effects of a product is a common basis for product liability lawsuits. An otherwise useful product carrying inherent risks may be determined to be unreasonably dangerous for its intended use solely due to the absence of an adequate warning alerting the user to the danger.

In product liability cases it is essential that measures be taken promptly to preserve evidence, document the chain of custody of the product in question, and to enable engineers or other expert witnesses to thoroughly evaluate the product and your injuries.

At Stevens - MacPhail, P.A., we strive to obtain fair and just compensation for our clients' injuries.  Using our experience and the extensive resources available to us, we focus on achieving the best possible recovery for our clients.  In all matters involving personal injury it is essential that measures be taken promptly to preserve evidence, investigate the accident in question, and to file a lawsuit prior to the deadline imposed by the statute of limitations.

If you or a loved one has been injured, you can call Stevens - MacPhail, P.A. at (800) 897-8856 or (864) 598-9172 or e-mail us to schedule a meeting.  The initial consultation is free of charge, and if we agree to accept your case, we work on a contingent fee basis, which means we get paid for our services only if there is a monetary award or recovery of funds.  Don’t delay! You may have a valid claim and be entitled to compensation for your injuries, but a lawsuit must be filed before the statute of limitations expires.

Types of Product Defects (Part One)

When making a claim for strict liability  in a product liability case, it is necessary to prove that the product was defective by proving that it was "unreasonably dangerous for its intended use" as a result of a defect or defects.  A product may be inherently dangerous but have substantial value, or "utility" such that the danger is one which would not be considered "unreasonable".

For instance, gasoline is an inherently dangerous product, but its utility far outweighs any danger posed by it. Therefore, the law does not consider gasoline to be unreasonably dangerous for its intended use. If there were an alternative, less dangerous, and no more costly fuel available, the law would likely permit a product liability action to prove that gasoline is an unreasonably dangerous product, and therefore, defective. Similarly, a knife is a dangerous product, but the law wouldn't consider it "unreasonably" dangerous unless it were manufactured with a handle so fragile that it will snap during ordinary use.

Certain types of products, such as medical drugs , may be considered unavoidably unsafe. There are many drugs used in the treatment of serious and fatal diseases which themselves may cause serious injury and even death. Although these products may be clearly "dangerous," they may not be considered "unreasonably dangerous" if proper information and warnings are given to users.

At Stevens - MacPhail, P.A., we strive to obtain fair and just compensation for our clients' injuries.  Using our experience and the extensive resources available to us, we focus on achieving the best possible recovery for our clients.  In all matters involving personal injury it is essential that measures be taken promptly to preserve evidence, investigate the accident in question, and to file a lawsuit prior to the deadline imposed by the statute of limitations.

If you or a loved one has been injured, you can call Stevens - MacPhail, P.A. at (800) 897-8856 or (864) 598-9172 or e-mail us to schedule a meeting.  The initial consultation is free of charge, and if we agree to accept your case, we work on a contingent fee basis, which means we get paid for our services only if there is a monetary award or recovery of funds.  Don’t delay! You may have a valid claim and be entitled to compensation for your injuries, but a lawsuit must be filed before the statute of limitations expires.

What Our Soldiers Really Need Is Lawyers

You have probably heard about the scandal involving the conditions at the Walter Reed Army Medical Center.  However, what you probably have not heard is even more shocking.  Did you know that for decades, our military servicemembers have been barred from suing for medical malpractice and other forms of negligence by the government under the Feres Doctrine?

This doctrine prohibits servicemembers from seeking the same relief that other citizens can when harmed due to the negligence of others.  Of course, the threat of a lawsuit (and more specifically a judgment) serves as a critical deterrence of negligence by the government, companies, and others.  In other words, knowing that one could be held accountable, required to pay compensation, and possibly pay punitive damages will cause most rational people to take steps to ensure that they act reasonably and thus minimize their legal exposure.

In the military system, there is little deterrence for military negligence beyond self-regulation, bad publicity, or a political scandal, thanks to the Feres Doctrine.  Further, since most accidents are isolated and military personnel tend to stay within the chain of command, these are relatively low risks for military tort-feasors and since such accidents are not litigated, there is no reliable system to determine the rate of accidents in the military.

The military medical system is a prime example of what happens when patients are stripped of their legal protections.  For example, consider the following real-life scenarios:

• A female sailor had to have a fallopian tube removed, but military surgeons left five sponges and a plastic marking device in her abdomen, where the remained undetected for months.  Finally, her resulting complications forced a second surgery to remove her other fallopian tube, which left her infertile.  Her "compensation" for this medical malpractice: $66 per month in disability pay.

• A Lieutenant Commander spent 11 months with red lesions from his legs to his torso that a doctor classified as eczema. It was correctly diagnosed as cancer shortly before he died.

• An Airman was turned away twice by a military hospital that told him his intense stomach pains was nothing more than stomach flu.  He died of a bowel obstruction.

• A Naval Petty Officer went to a military hospital with pneumonia, which is treatable with antibiotics.  However, the doctor left it untreated, and the patient suffered brain damage.

• An Air Force Staff Sergeant had appendicitis but was repeatedly misdiagnosed and sent home with some antibiotics.  After finally collapsing at home, he was rushed into surgery, but he came out brain-dead. It's alleged that a series of malpractice led to his death, including the use of a pediatric rather than an adult device to open an airway when he had trouble breathing.

Both liberals such as Justice John Paul Stevens and conservatives such as Justice Antonin Scalia have denounced the Supreme Court's continued use of the Feres Doctrine, as have dozens of lower court judges.  This doctrine has done more harm to military personnel and families than any court-made doctrine in the history of this country.  If members of Congress truly want the best for our troops, they should start by giving them the same legal protections as the the non-military citizens that they are protecting.

Source:  "What Our Soldiers Really Need: Lawyers" by Prof. Jonathan Turley, published in USA Today.

Other Aspects of Product Liability Cases

In a negligence claim, a plaintiff must show that a manufacturer, seller, wholesaler or other party involved in the distributive chain had a duty to exercise reasonable care in the process of manufacturing or selling a product and failed to fulfill that duty, resulting in injury to the plaintiff. Negligence consists of doing something that a person of ordinary prudence would not do under the same or similar circumstances; or failing to do something that a person of ordinary prudence would do under the same or similar circumstances. This can take the form of negligence in drawing up or reviewing plans for a product, negligence in maintaining the machines that make the component parts of the product, negligence in failure to anticipate probable uses of the product, negligence in failure to inspect or test the product adequately, negligence in issuing inadequate warnings or instructions regarding the use of the product, or any other aspect of the manufacturing or distribution process where due care is not used.

A breach of warranty claim arises under the law of contracts, where the law imposes certain "implied warranties" on the sale of goods. Such warranties include the warranty of merchantability (that the goods are in proper condition for use and free of defects), and the warranty of fitness for a particular purpose (e.g., the refrigerator must be able to keep food cold and fresh; the chair must be capable of supporting a person�s weight). These warranties are called implied warranties because the law assumes that they apply even if they are not expressly stated. If a product does not meet these standards, the purchaser may have the right to return it and get back the purchase price, or sometimes to receive monetary damages. The law of contracts covers economic loss caused by the breach of warranties in the sale of goods. The Uniform Commercial Code, Article 2, also deals with the sales of goods and the implied and express warranties of merchantibility in the sales of goods §§ 2-314 and 2-315.

In product liability cases it is essential that measures be taken promptly to preserve evidence, document the chain of custody of the product in question, and to enable engineers or other expert witnesses to thoroughly evaluate the product and your injuries.

At Stevens - MacPhail, P.A., we strive to obtain fair and just compensation for our clients' injuries.  Using our experience and the extensive resources available to us, we focus on achieving the best possible recovery for our clients.  In all matters involving personal injury it is essential that measures be taken promptly to preserve evidence, investigate the accident in question, and to file a lawsuit prior to the deadline imposed by the statute of limitations.

If you or a loved one has been injured, you can call Stevens - MacPhail, P.A. at (800) 897-8856 or (864) 598-9172 or e-mail us to schedule a meeting.  The initial consultation is free of charge, and if we agree to accept your case, we work on a contingent fee basis, which means we get paid for our services only if there is a monetary award or recovery of funds.  Don’t delay! You may have a valid claim and be entitled to compensation for your injuries, but a lawsuit must be filed before the statute of limitations expires.